Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

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Posts categorized "Jessica's Law"

Thursday, 31 October 2013

"When Judges Don’t Know Everything," is the title of Linda Greenhouse's New York Times OpEd. The former Times Supreme Court reporter has continued to write at the Times' Opinionator blog, and is now contributing OpEd columnist. Here's the beginning:

A name familiar from a 2008 Supreme Court death penalty case was back in
the news the other day. A federal district judge in New Orleans granted
a new trial to Patrick Kennedy, convicted in 2003 of brutally raping an
8-year-old girl. He has been serving a life sentence in a Louisiana
prison, spared the death penalty by a Supreme Court ruling that capital
punishment for the rape of a child, unaccompanied by murder, violates
the Eighth Amendment’s prohibition of cruel and unusual punishment.

Justice Anthony M. Kennedy’s majority opinion
placed the emphasis on “unusual.” Only five states in addition to
Louisiana made the rape of a child a capital offense, he noted, adding
that when Congress last revisited the federal death penalty, in the
mid-1990s, it failed to add child rape to the list of federal capital
crimes. Capital punishment for the rape of a child was contrary to
society’s “evolving standards of decency,” the majority concluded.

It was a high-profile case that divided the justices 5 to 4. But the ink
was barely dry on the decision, Kennedy v. Louisiana, when it emerged
that the court’s factual premise for taking the defendant off death row
was, to put it charitably, incomplete. Standards weren’t evolving in
only one direction, it turned out. Less than two years earlier, Congress
had in fact added child rape to the list of capital offenses in the military justice system.

How could the justices not have known this? Simple: no one told them —
not Louisiana, which vigorously defended its law; not the other states
that supported Louisiana’s argument; and not the federal government,
which didn’t even file a brief in the case. The court and all the
parties to the case were embarrassed. Would the knowledge have made a
difference to any of the five justices in the majority, changing the
outcome? Probably not, but who knows? Louisiana asked the court to
reconsider its decision, but the justices turned the state down, acknowledging the late-discovered fact in a new footnote while dismissing it as irrelevant.

Thursday, 29 April 2010

That's the title of an AP report by Sean Murphy via Google News. LINK The Oklahoma Legislature is considering a non-homicidal death penalty expansion bill that has been passed by both the House and Senate, but in slightly different forms.

With full control of the Oklahoma Legislature for the first time,
Republicans have been flexing their political muscles, passing laws they
know will face court challenges, including ones making it harder to get
abortions and easier to buy guns.

With the state more than $1
billion in the red, however, even some among their ranks wonder if they
can afford such success.

"I respect my colleagues' right to put
those issues out there, and I generally vote for most of them, if not
all of them. But in these budget times, it is kind of concerning," said
Republican state Rep. Doug Cox, of Grove.

Democratic Gov. Brad
Henry vetoed a law Tuesday that would restrict federal authorities'
ability to regulate the sale of firearms produced and kept in Oklahoma.
The Justice Department is challenging a similar law in Montana, and
constitutional experts say there is little chance any court would uphold
the law.

"It simply makes no sense to continue to pass
unconstitutional measures that run up legal bills and waste taxpayers'
money," Henry said after rejecting the bill. Despite its slim chances of
being upheld, its Republican sponsor has vowed to override the veto.

Lawmakers
didn't have much trouble this week overriding Henry's veto of two bills
critics have said give Oklahoma some of the strictest abortion laws in
the country. One law requires women seeking abortions to undergo an
intrusive method of ultrasound early in their pregnancies.

Henry
predicted the bill could lead to a "potential futile legal battle," and
already an abortion rights group has challenged the ultrasound bill's
constitutionality.

"In addition to being constitutionally suspect,
these bills are fiscally irresponsible," said University of Oklahoma
constitutional law professor Joseph Thai. "Taxpayers may not appreciate
that a challenged law costs hundreds of thousands of taxpayer dollars to
litigate."

The number of lawsuits challenging state statutes has
jumped each of the past three years — with 15 cases filed in 2007, 18 in
2008 and 24 last year. Most cases are handled by the Attorney General's
Office, which didn't have an estimate of the number of hours it has
spent defending such challenges. But the state sometimes hires outside
counsel, as was the case with one lawyer who billed the state $90,000 to
defend it against two lawsuits challenging other abortion laws that
ultimately were overturned.

In some cases, the number of attorney
hours can easily climb into the thousands, and if the state loses, they
can be forced to pay attorney fees for the other side, said Micheal
Salem, an attorney who reached a "six-figure" settlement with the state
last year over a challenge to an Oklahoma law on initiative petition
circulators. He declined to disclose the exact amount.

"It's no
fun to pay your own attorney, but it's even worse to pay your opponent's
attorney," Salem said.

Oklahoma is among the nation's most
conservative states, and many residents support the recent
Republican-backed measures. But with the state facing a $1.2 billion
budget deficit, some residents have questioned whether now is the right
time to be picking legal fights.

"They're spending millions of
state dollars defending these things for someone to basically have a
small headline in the newspaper, and in the long run it will mean
absolutely nothing except a lawsuit," said University of Oklahoma art
professor Eric Anderson, who said he's worried about possible furloughs
at the school amid looming budget cuts. "It's absolute demagoguery."

And:

A bill being considered this session would authorize the death penalty
for child rapists — a penalty that was struck down by the U.S. Supreme
Court in a Louisiana case two years ago.

Thursday, 11 March 2010

State lawmakers voted to increase the penalties - including life in prison and death - facing repeat child molesters.

House Bill 2965, by state Rep. Rex Duncan, would
expand the penalties for child molesters, allowing repeat offenders to
face life in prison without parole or the death penalty.

“The death penalty is the ultimate deterrent and
reserved for worst of the worst criminals,” said Duncan, a Sand Springs
Republican who chairs the House Judiciary Committee. “Individuals with
a history of violently raping children clearly fall into that category
and should face a punishment equal to their crime.”

Under current law, a child molester can face a
sentence of 25 years to life for a first offense. Duncan’s legislation
will increase the penalty to include a maximum sentence of life without
parole.

His legislation will also allow the death penalty
to be considered for those convicted of a second or subsequent offense.
That provision has been crafted to comply with recent court rulings.

The legislation will also eliminate the “homeless
defense” as an excuse for not registering as a sex offender and allow
those convicted of failure to register to receive a 20-year prison
sentence.

Earlier coverage of the Oklahoma legislation begins with this post; full information on HB 2965 at this LINK.

Perhaps these excerpts from Justice Anthony Kennedy's opinion in Kennedy v. Lousiana would be enlightening:

Consistent with evolving standards of decency and the teachings of our
precedents we conclude that, in determining whether the death penalty
is excessive, there is a distinction between intentional first-degree
murder on the one hand and nonhomicide crimes against individual
persons, even including child rape, on the other. The latter crimes may
be devastating in their harm, as here, but "in terms of moral depravity
and of the injury to the person and to the public," Coker, 433 U. S., at 598 (plurality opinion), they cannot be compared to murder in their "severity and irrevocability." Ibid.

After a lengthy discussion of problems involving a child victim's participation in a capital prosecution, Justice Kennedy concludes:

Each of these propositions, standing alone, might not establish the
unconstitutionality of the death penalty for the crime of child rape.
Taken in sum, however, they demonstrate the serious negative
consequences of making child rape a capital offense. These
considerations lead us to conclude, in our independent judgment, that
the death penalty is not a proportional punishment for the rape of a
child.

Thursday, 18 February 2010

We disagree in principle with a proposal in the state
Legislature to execute repeat child rapists. Sex crimes against
children are abhorrent, and given children’s inability to defend
themselves from adult abuse, we understand the inclination to treat
child sex criminals very harshly.

But this editorial board
reversed its position on the death penalty a few years ago. We oppose
it because of the high number of criminal cases, including murder
cases, that were overturned in past years. In fact, Wednesday a North
Carolina man held in prison for 17 years on first-degree murder was
exonerated and freed.

State Rep. Rex Duncan, R-Sand Springs,
proposed and the House Judiciary Committee approved this month a bill
that would allow no-parole life prison sentences or the death penalty
for repeat offenders who rape children age 6 or younger. Oklahoma
already has a law that calls for the death penalty for repeat child
molesters if the child is younger than 14, but it has never been used.

Prosecutors’ reluctance to use the law is
partly the result of a 2008 U.S. Supreme Court decision that struck
down a Louisiana law that permitted the death penalty for child rape.
The court ruled the law violated the Eighth Amendment, which bars cruel
and unusual punishment.

The Louisiana law allowed the death penalty
for first-time child rape convictions. Duncan maintains the Supreme
Court would uphold his bill because it applies capital punishment to
repeat offenders.

Earlier coverage of the Oklahoma legislation is here. You can get full information on HB 2965 at this LINK.

Tuesday, 09 February 2010

Repeat sex offenders convicted of raping a child 6 years old or younger would be eligible for the death penalty under a bill approved Monday by a House committee, despite a 2008 U.S. Supreme Court ruling that a similar law was unconstitutional.

The bill by Rep. Rex Duncan, R-Sand Springs, was among a host of measures overwhelmingly approved by the House Judiciary Committee that either create new felony crimes or enhance existing criminal penalties.

Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court.

"I think they did get it wrong," Duncan said of the Supreme Court's 5-4 decision, "and I would not be surprised if other states revisit their statutes on this issue."

The Supreme Court decision came in a Louisiana case involving 43-year-old Patrick Kennedy, who was sentenced to death for the rape of an 8-year-old girl. The nation's highest court ruled the Louisiana law allowing the death penalty to be imposed in such cases violated the Constitution's ban on cruel and unusual punishment.

In the court's majority opinion, Justice Anthony Kennedy concluded that in cases of crimes against individuals — as opposed to treason, for example — "the death penalty should not be expanded to instances where the victim's life was not taken."

At the time of the ruling, Oklahoma was among five states to explicitly permit such executions.

Duncan said the intent of his bill is to target child rapists who already have a previous conviction for a violent sex offense.

"If that's what the bill says, the bill is facially unconstitutional," said Randall Coyne, a constitutional law professor at the University of Oklahoma. "The court can change its mind, and it often does ... but I doubt the court would overturn so recent a decision."

State Rep. Ryan Kiesel, the lone opposing vote against the measure, said he agrees child rapists should be handed harsh penalties but questioned the wisdom of a measure that clearly violate a Supreme Court ruling.

"I think it would be a terrible waste of time and money for a district attorney in the state of Oklahoma to seek that punishment and then see that as an appeal issue and take a long time to wind through the courts, putting an additional emotional burden on the victims and their families," said Kiesel, D-Seminole.

"Allowing the death penalty for repeat sex offenders who rape a child
younger than 6, punishing adults who provide liquor to teens in their
homes by as much as life in prison and requiring at least one hour of
counseling before a couple can seek a divorce all won the support
Monday of a House committee.

House Bill 2965 is an attempt to comply with a recent U.S. Supreme Court
ruling, which basically nullified a 2006 law that allowed execution or
life without parole of a person convicted of a second offense of rape
or other sex crimes involving a child under 14 years old.

Rep. Rex Duncan,
the bill's author, said the intent of his measure is to allow the death
penalty or life without parole for convicted sexual offenders who are
convicted of raping a child less than 6 years old.

"If the
Supreme Court someday finds that this statute is unconstitutional I
don't believe that the defendant would be entitled to a new trial or
sentencing because it would revert back to the only other sentence that
is available which would be life without parole," said Duncan, R-Sand
Springs.

As you may have noticed, from our twoposts late on Monday night and one from Tuesday morning, we're engaging in some after-the-fact blogging of last week's Federalist Society National Lawyers Convention.

As in past years, the social highlight of the conference was the
Thursday night banquet (black tie optional; and many availed themselves
of the option, 'cause that's how conservatives roll). The speaker at
the dinner was none other than Justice Samuel A. Alito,
who delivered an insightful and hilarious speech that was a delight to
listen to. Just as one might say of, say, a newscast by Jon Stewart,
much of the entertainment value was in the delivery -- Justice Alito is
so dry and deadpan, and yet his remarks make you bust out laughing.

Interestingly enough, we haven't come across many news accounts of
Justice Alito's speech. There was also no video recording allowed at
the address. So we feel we can add some value with this write-up,
despite its belated nature.

And:

Justice Alito then made surprisingly candid remarks about Kennedy v. Louisiana
(2008), in which the Supreme Court, by a 5-4 vote, held that punishing
the crime of child rape with the death penalty violates the Eighth
Amendment. He pointed out that in 2006, Congress revised revised the
Uniform Code of Military Justice to add child rape to the list of
offenses punishable in the military by death (a fact that didn't come
to light until after the opinions were issued; it was pointed out by
blogger Dwight Sullivan, whose blogging then got picked up by Linda Greenhouse of the New York Times).

In light of this recent federal enactment, multiple state laws to
the same effect, and even public opinion polls suggesting support for
the death penalty in such cases, was the Court's decision in Kennedy v.
Louisiana proper? In Justice Alito's opinion, it was not. Rather, this
was an unfortunate case of Justice Kennedy the Court substituting its own judgment for that of the people.

Thursday, 03 September 2009

"Cracked Justice Enabled Girl Rape Case," is the title of syndicated columnist Froma Harrop's latest, via Real Clear Politics. Harrop uses as a news peg the case of Phillip Garrido, accused of the kidnapping and rape of Jaycee Dugard. Harrop notes that Garrido had been sentenced to 50 years in prison following a 1976 abduction and rape, but was on parole 11 years later.

Until recently, the death penalty for child rape was legal in five
states. The U.S. Supreme Court, in a 5-4 ruling, overturned those laws
last year. The case at hand involved a stepfather sentenced to death in
Louisiana for raping his 8-year-old stepdaughter. The girl was so badly
injured that she needed emergency surgery.

Only Louisiana had people on death row for child rape. Georgia,
Montana, Oklahoma, South Carolina and Texas required a previous
conviction or other aggravating factor to make this a capital crime.

Writing for the court majority, Justice Anthony Kennedy said that
while child rape was a "devastating" crime, it did not rise to the
level of homicide. It could not be likened to intentional first-degree
murder.

A sickening crime, to be sure, but Kennedy is right. It is not my
intention here to call for any expansion of the death penalty. On the
contrary. Executing prisoners exposes society to the excruciating risk
of killing someone who was wrongly convicted. That hazard grows
stronger in the cases of child rape, where young witnesses may not be
reliable.

But we who oppose the death penalty must also take on grave
responsibilities. We must ensure that justice is served and dangerous
predators are prevented from harming others. Both ends can be met by
keeping bad people behind bars.

And:

And so where does that leave those who oppose capital punishment? It
should leave them demanding a justice system that doesn't get sloppy
about releasing perpetrators of heinous crimes. Sometimes, you have to
be tough to be humane.

Harrop's home paper is the Providence Journal of Rhode Island, where she is a member of the editorial board.

Thursday, 02 October 2008

While I was arriving and departing various airports today, the U.S. Supreme Court announced a revision to its opinion in Kennedy v. Louisiana, and rejected a request by Louisiana for a rehearing of the case.

The Court’s modified opinion in Kennedy v. Louisiana is now available on the Court’s website, at this link.
This is the version that will appear in the United States Reports, the
official record of the Court’s opinions. The separate opinions
released on Wednesday are also available on that website, at this link.)
Those separate opinions, explaining or commenting upon the denial of
rehearing, will be reported in the U.S. Reports separately, as part of
the Court’s “opinions related to orders.” The Court is expected,
however, to insert a note with the modified opinion referring the
reader to these opinions further back in the volume.

After a summer of public conversation, and legal argument, the
Supreme Court put an end — at least temporarily — to the speculation
that it might alter its approach to the constitutionality of the death
penalty. Despite the very unusual (though not unprecedented)
alteration of a previously issued opinion, the Court still is committed
to a two-step method of deciding whether a death sentence for a given
crime violates the Eighth Amendment. If there is anything new about
that calculus, is it that military law probably does not count in it.
In fact, the Court left open — as it had before — the question of
whether the Eighth Amendment governs the military in the same way it
does the civilian community. That might be tested at some point in the
future in a military death penalty case — rare though they are.

But the two-step Eighth Amendment analytical formula the Court has
relied on for years remains entirely intact. The first step is to
check for a “national consensus,” canvassing the views of policymakers
and legislators at all levels of government. That does not end the
inquiry, however. The Court, as indicated in the original Kennedy v. Louisiana opinion issued on June 25, assigns “great weight” to such “objective evidence of contemporary values,” but it added that that “does not end our inquiry.”

The second step, then, is for the Court to use its own “independent
judgment” — a more-or-less free-standing inquiry “informed” by “our
precedents and our own understanding of the Constitution and the rights
it secures.”

Justice Anthony Kennedy, who wrote the original majority opinion, wrote on Wednesday
that the military death penalty for rape had been the rule for more
than a century, and when the Supreme Court in 1977 decided in Coker v. Georgia
that the death penalty was unconstitutional for the crime of adult
rape, military law was not considered. He also said a military criminal
law should not necessarily color the constitutional analysis of a
related law in the civilian context.

But the Court, on its own motion, did modify its June decision
by adding footnotes and other wording in the majority and dissent
making note of the military law change, but concluding that "the
military penalty does not affect our reasoning or conclusions."

On Wednesday, Justice Kennedy wrote that the 2006 amendment merely
tinkered with a statute that had long authorized capital punishment for
the rapes of both adults and children. He added that “authorization of
the death penalty in the military sphere does not indicate that the
penalty is constitutional in the civilian context.”

Justice Kennedy acknowledged that the last time the military imposed
the death penalty, in 1961, it was for rape and attempted murder. He
did not say that the victim had been an 11-year-old girl. The defendant
in the case before the court, Patrick Kennedy, had been convicted of
raping his 8-year-old stepdaughter.

Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr.,
also voted not to rehear the case, but on a different ground. Justice
Scalia called the original decision disingenuous and suggested that
nothing would change it. “The views of the American people on the death
penalty for child rape were, to tell the truth, irrelevant to the
majority’s decision in this case,” he wrote.

The court rarely grants new hearings in cases it has decided. A
rehearing would have required five votes, including one from the
previous majority.

The existence of the military law came to light only after a
civilian Air Force lawyer, Dwight Sullivan, noted it in his military
law blog after the decision. His report led to a front-page New York Times story on the omission.

Kennedy pointed out that no member of the military was facing a death
sentence for raping a child. "In any event, authorization of the death
penalty in the military sphere does not indicate that the penalty is
constitutional in the civilian context," he said.

The June 25 decision said only six states had laws authorizing
capital punishment for child rape. But unknown to the justices at the
time they wrote the opinion, Congress in 2006 had amended the nation's
military law to authorize capital punishment in such cases for child
rapists. In 2007, President Bush issued an executive order concurring
with the congressional action.

These actions were not discussed in the case briefs to the high court or at oral argument.

In light of the new information, the US Solicitor General's Office and the state of Louisiana asked the court to rehear the
case and take a fresh look at whether a "national consensus" had really formed against the practice.

The
answer came on Wednesday. The author of the opinion, Justice Anthony
Kennedy, and the four other members of the majority stood behind the
landmark decision, agreeing only to amend the opinion with a footnote
mentioning the congressional action.

"The court has determined that rehearing is not warranted," Justice Kennedy said in a three-page statement.

Lawyers for Patrick Kennedy, whose death sentence was overturned by
the court, said the justices got it right the first time. Kennedy's
lawyers said military law has long authorized death as punishment for
rapes of adults and children, but that the military hasn't sought to
execute a rapist in more than 40 years.

The administration took
no position when the case was argued, but backed Louisiana's call for a
new hearing. The administration said in court papers that Kennedy's
opinion "rests on an erroneous and materially incomplete assessment of
the 'national consensus' concerning child rape."

As he did following the June 25 decision, Gov. Bobby Jindal lashed
out at the court, saying justices were "dead wrong in their ruling."

"It is disappointing that they did not take this opportunity to move
quickly to rehear this case and examine their legally improper and
absurd decision to remove death as a penalty for the horrific crime of
child rape, " Jindal said.

U.S. Sen. David Vitter, R-La., said he, too, was disappointed.

"The penalty of execution exists for the most heinous criminal
offenses committed by individuals, and the rape of a child is
undoubtedly such an offense, " he said.

Thursday, 25 September 2008

In the final brief
to be filed before the Supreme Court decides whether to reconsider a
major ruling on the death penalty, the state of Louisiana cautioned the
Justices not to make the issue depend solely upon the Court’s own
constitutional perceptions, arguing that Congress and the state
legislatures are entitled to their say, too.

“This Court has never resorted to its independent judgment alone to
void a punishment under the Eighth Amendment,” the state’s lawyers said
in a supplemental brief filed in Kennedy v. Louisiana (07-343).
The Court, at the request of Louisiana, is pondering whether to rehear
its June 25 decision striking down the death sentence for the crime of
raping a child.

The Justices are scheduled to consider the rehearing petition at
their private Conference on Monday. If rehearing is granted, word of
that may become known as early as next Tuesday. A denial might not
become known until Monday, Oct. 6, at the formal opening of the new
Term.

In reaching its decision at the end of last Term in Kennedy,
the Court used its own “independent judgment,” but also relied upon a
finding that there is a “national consensus” among policymakers and
legislatures against that penalty for that crime. Louisiana, joined by
the Justice Department, has sought to cast doubt on the ruling, but
especially on the second part of that equation, saying that the Court
overlooked recent action by Congress and the President in allowing the
death penalty for child rape as a matter of military criminal law.

In an unusual move, the negative reactions of presidential candidates
John McCain and Barack Obama to a recent Supreme Court decision have
been placed before the justices to support a request that the Court
reconsider its ruling. The state of Louisiana included the candidates'
statements in its latest filing seeking rehearing of Kennedy v. Louisiana, in which the justices said it is unconstitutional to execute those convicted of child rape when the victim survives.

Monday, 22 September 2008

On Wednesday, the state of Louisiana is to file a brief of up to 4,500
words expressing its views on the merits of the issue raised its
petition for rehearing in Kennedy v. Louisiana (07-343), the opinion striking down use of the death penalty for child rape. The Court’s briefing order is available here, and a post containing the briefs filed last week by Kennedy and the United States is available here.

There is something almost sacrosanct about
recitations of law contained in decisions of the U.S.
Supreme Court. Lower-court judges, attorneys, law
professors and everyday citizens depend on those
statements in myriad ways even when disagreeing with the
court's conclusions.

If for no other reason than that, the court should
reconsider and correct an opinion it filed at the end of
its last term, Kennedy vs. Louisiana.

And:

Interestingly, as reported in press accounts, an
internet blogger first revealed the court's error
by posting a comment on a military law site. None of the
nine justices, their law clerks or the lawyers who
collectively filed 10 briefs in the case picked up on
the mistake. That's not really relevant, either. The
court's error reflects only that judges are human
with the same flaws as the rest of us.

What matters now is whether the court will stand up for
its own integrity. The court should reconsider its
decision as the first order of business when the new court
term begins early next month. In a promising sign, the
justices recently asked Louisiana's counsel and
other lawyers involved in the case whether the court
should rehear the matter and, if so, whether the
existence of the 2006 military law should alter the
court's ruling.

Whether the court ultimately reverses its decision will
depend on the court's evaluation of a correct
survey of the law. Until that happens, we will be left
wondering whether its divided Louisiana ruling is entitled
to respect based on an accurate review of the law or
merely because the court decreed it to be so.

"On the Hill," from the Sunday New Orleans Times-Picayune carried this brief:

Sen. David Vitter, R-La., is asking his colleagues to
support his resolution to put the Senate on record as
disagreeing with the Supreme Court's ruling this year
that rejected the death penalty for people convicted of
raping a child. The case involved Patrick Kennedy of Harvey,
who was convicted five years ago and sentenced to death. The
Supreme Court, which ruled 5-4 that the death penalty was
cruel and unusual punishment for a case in which the victim
does not die, has since asked attorneys involved in the case
to submit briefs on whether the high court should reconsider
that ruling. Vitter said the Senate ought to express its
position. "My resolution would allow the Senate to
express an opinion that matches that of the majority of
Americans -- that the court ruled improperly and that the
ruling should be overturned," Vitter said. He
complained that the Democratic majority isn't giving
him a chance to bring up his resolution for a vote.

Thursday, 18 September 2008

Lawyers for a death-row inmate in Louisiana, arguing that military
law is beside the point when deciding the constitutionality of criminal
sentences for civilians, urged the Supreme Court on Wednesday to leave
intact its recent decision nullifying the death penalty for the crime
of raping a child. Had the Court known at the time of its ruling June
25 that there was a provision in military law on that issue (it
apparently did not), that might have deserved mention, but perhaps only
a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

The brief also argued that the Kennedy opinion did not go so far as
to strike down the death penalty for child rape if that crime occurs in
the military context. Should there be such a prosecution in the
military in the future, the brief said, “this Court will have ample
opportunity to consider…whether special military requirements entitle
the military to more leeway than states under the Eighth Amendment.”

That argument sought to counter a claim by the federal government that the Kennedy
opinion is so sweeping that it bars the military from imposing a death
sentence for child rape, as the government says is now permitted under
a 2006 federal law and a presidential order.

Meanwhile, the Justice Department in its own new filing urged the
Court to reopen the case, and change it, at least by allowing that
sentence in “aggravated cases” of child rape, perhaps in a military
setting. In a brief
invited by the Court, Acting Solicitor General Gregory G. Garre said
that the Court should not nullify that penalty in the face of support
for it by Congress and the President. “The Court should not displace a
recent and emerging consensus reflected in the judgment of the Nation’s
political Branches that a particular punishment is appropriate and
proportionate,” Garre contended.

The Court is considering a plea by the state of Louisiana to rehear
its decision. The state has been told to file a brief by next
Wednesday. Once that brief is in, the Court will then be in a position
to decide whether it will reopen the case and, if so, whether to modify
its opinion.

I have more to say about each of the briefs, but you will have read my thoughts in my new article which I am happy to say will be forthcoming in the Northwestern University Law Review Colloquy.
The Colloquy has promised me publication by the end of the month which
is fantastic and really shows the potential of online law reviews.

The Supreme Court on Monday called for new legal briefs on possible
rehearing — and, maybe, revision — of its ruling striking down the
death penalty for the crime of child rape. In an order in Kennedy v. Louisiana (found here),
the Court sought briefs from lawyers for both sides in the case, as
well as from the federal government. The new briefing in 07-343 is to
be completed by Sept. 24 — in advance of the Court’s first Conference
of the new Term, on Monday, Sept. 29.

The briefs are to discuss two issues, according to the order: first,
whether to grant rehearing of the June 25 decision, and second, what
action — if any — the Court should take if it does reopen the case.
Here is the way the Court phrased its inquiries: “whether rehearing
should be granted” and “the merits of the issue raised in the petition
for rehearing” filed by the state of Louisiana on July 21.

That issue, of course, is whether the Court should modify or expand
the substance of its ruling in the case because the decision did not
take account of a federal law authorizing a death sentence for child
rape as part of the military justice system. This embraces several
other related issues: Will the Court rethink its conclusion that there
is a “national consensus” against the penalty for that crime? Will it
clarify whether one basis for its decision (the absence of a “national
consensus”) was more important than the second basis (the Court’s
independent view that the punishment was excessive for the crime)? Will
it make clear whether rulings under the Eighth Amendment apply to the
same degree in the military justice system as in civilian courts? Will
it comment in any way on the constitutionality of the military justice
provision for the death penalty for child rape?

In Monday’s order, the Justices sought a supplemental brief of up to
4,500 words from attorneys for Patrick Kennedy, the death-row inmate at
the center of the case, with that brief due on Sept. 17. The U.S.
Solicitor General’s office is to file a brief of up to 2,500 words, due
at the same time, on the federal government’s views. The state
of Louisiana is to file a brief of up to 4,500 words, dealing not only
with its plea for rehearing, but also “the merits of the issue raised
in the petition for rehearing.” That final brief is due Sept. 24.

The state of Louisiana and the Justice Department
have asked the court to reconsider the 5 to 4 decision because the
court was not made aware of what they consider a crucial development:
that Congress in 2006 made child rape a capital offense under military
law.

No one presented that fact -- it seems none of the parties knew at
the time that it existed -- when the court said in June that there was
no evidence of a national consensus in favor of putting child-rapists
to death. The court further found that in its "independent judgment,"
child rape could not be compared to murder in terms of warranting the
death penalty.

Justice Anthony M. Kennedy wrote the opinion, joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg
and Stephen G. Breyer. It provoked a sharp dissent from the other four
justices and was among the most controversial of the term. Presidential
candidates John McCain and Barack Obama criticized the ruling.

The decision overturned the death penalty for Patrick Kennedy,
43, who was convicted of raping his 8-year-old stepdaughter in
Louisiana in 1998. Justice Kennedy noted in his opinion that Louisiana
is one of six states that allowed the death penalty for the crime.

Louisiana did not note in its briefs the little-known change
Congress made to military law provisions or the addition of the
provision to the Manual for Courts-Martial by President Bush, in an executive order.

Mr. Kennedy's lawyer, Prof. Jeffrey Fisher of Stanford Law School, said he thought a rehearing unnecessary, and would elaborate in his brief next week.

In a 1958 case, the Supreme Court observed that the Eighth Amendment's words "are not precise" and "their scope is not static." In what has since defined the test for cruel and unusual punishment, the court said that the amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Under that test, the court in 1977 struck down capital punishment for rape of a person over 16.

Wednesday, 13 August 2008

That's the title of James Gill's column in today's New Orleans Times-Picayune. LINK

You never know, when Gov. Bobby Jindal gets a bee in his
bonnet, whether he is acting out of conviction or a desire
to burnish his credentials with the Cro-Magnon wing of the
GOP.

If Jindal is anywhere near as smart as advertised, the
latter must explain, say, his support for Creationism in
biology class. His latest crusade -- death to child
rapists -- won't do him any political harm either,
and is surely a distraction from pressing matters of state.
Still, maybe he really wants them dead at that.

Jindal professes himself "outraged over the U.S.
Supreme Court's absurd decision to overturn a death
penalty sentence" for Patrick Kennedy of Harvey,
convicted in the brutal rape of an 8-year-old girl and the
only death row inmate in America who had not committed
murder.

Jindal is hardly alone in his view that Kennedy received
justice from the Louisiana courts. Four of the U.S. Supreme
Court justices voted against vacating the death sentence,
and Jefferson Parish District Attorney Paul Connick, with
Jindal's encouragement, has asked for the decision to
be reversed.

U.S. Sen. David Vitter, R-Metairie, has offered a
resolution condemning the court for overturning the
Louisiana statute that prescribes death for child rapists.
As modern conservatives tend to do when confronted with a
narrow or ephemeral issue, Vitter also proposes a
constitutional amendment.

American exceptionalism is nowhere more apparent these
days than in the question of capital punishment. It has come
to be regarded as futile and barbarous most everywhere else.

And:

The Supreme Court is not in error until the Supreme Court
says it is, however, and nobody is betting that will happen.

Jindal has a back-up plan, and has instructed his lawyers
to draft a statute that would make child rape a capital
offense and still meet with the Supreme Court's
approval. That is a pretty tall order. It would more or less
a miracle if the Louisiana Legislature could force the
Supreme Court to modify its views of the nation's
"evolving standards of decency," and there is a
strong whiff of political posturing in the air.

Jindal, and many of his constituents nevertheless, no
doubt, share the views of Justice Samuel Alito, who wrote
the dissent and noted that not all murderers are necessarily
more depraved than all child rapists. It is indeed hard to
conceive of worse scum than Patrick Kennedy, but the Supreme
Court won't let us kill him whatever Jindal says.

Monday, 11 August 2008

Gov. Bobby Jindal said Saturday his
administration is working with prosecutors on a bill that
would reinstate the death penalty for rape in limited cases,
especially for "monsters" who prey on young
children.

"If there is any crime (other than murder) that
merits the death penalty, it is rape," Jindal told
applauding delegates to the 71st annual meeting of the
Louisiana Municipal Association, a statewide organization of
mayors.

After his speech, Jindal told reporters that besides
asking the U.S. Supreme Court to reconsider its 5-4 June
ruling throwing out the death penalty law in a Jefferson
Parish child rape case, his staff is researching ways to
craft a new law that would meet constitutional muster. >

The next time the Legislature could take up such a bill
is likely to be in the April regular session, a meeting
geared mainly to tax and fiscal matters, although each
lawmaker can file five nonfiscal bills.

If Jindal calls a special session before then, he could
include a new capital-punishment rape law on the agenda.

And:

Jindal said the high court "made an awful
mistake" in striking down the law.

He told reporters that his executive counsel, Jimmy
Faircloth, has been meeting with district attorneys and
others on ways "to craft legislation we think will
stand their (the justices') scrutiny." One factor
being examined, he said, is the age limit of the victim. The
old law allowed a prosecutor to seek the death penalty for
anyone convicted of raping a child younger than 12.

State Rep. Scott Muschany, a Republican lawmaker from suburban St.
Louis who was indicted Wednesday for having "deviate sexual
intercourse" with a 14-year-old girl, was among 28 Missouri lawmakers
who pushed for the death penalty for child rapists.

A Cole County grand jury in Jefferson City indicted the 42-year-old
Muschany for allegedly sexually assault a minor girl on May 17 — a day
after the Missouri General Assembly concluded its 2008 session.

Muschany abruptly decided on May 20 to take his name off the ballot and
not seek re-election, telling The Associated Press, "There's no scandal
as far as I'm aware of. My wife and I just decided it wasn't the right
time to continue."

A criminal conviction must be based on valid evidence. Likewise, a
legal interpretation that says a constitutional right trumps the
state’s authority to enforce a democratically enacted law must be based
on valid considerations.

The court might come to the same
conclusion after reconsideration, but it should arrive there after
assessing accurate information.

The Star-Telegram
Editorial Board has repeatedly argued for restricting capital
punishment for the worst of the worst and suspending its application in
Texas until serious problems with the system are addressed. Even those
who would limit — or abolish — the death penalty can’t be pleased with
a key court ruling that’s based partly on a false premise.

Fifty years ago, in Flora v. United States, the
court considered whether a taxpayer could bring a tax-refund suit in a
federal district court if he did not first pay all of the taxes sought
by the Treasury. Initially, the Court held 8-1 (with a short dissent by
Justice Charles Evans Whitaker) in favor of the government, that full
payment was required.

The Court relied upon its understanding that there was
no case in which a taxpayer attempted a refund suit without paying the
full amount the government alleged to be due. It was wrong. Tax lawyers
around the country soon came forward and reported that they had brought
such refund cases. The taxpayer, Walter Flora, thereupon sought a
rehearing.

The Court granted the rehearing, and Justices Felix
Frankfurter and John Marshall Harlan switched their votes, making the
rehearing vote 5-4. They, together with the newly-appointed Justice
Potter Stewart, joined Justice Whitaker's expanded dissent after the
rehearing.

While the court ultimately upheld its initial decision, Justice Frankfurter's separate opinion has particular resonance with Kennedy v. Louisiana.
"Once the basis which for me governed the disposition of the case was
no longer available," he wrote, "I was thrown back to an independent
inquiry of the course of tax legislation and litigation for more than a
hundred years, for all of that was relevant to a true understanding of
the problem presented by this case." He added, "This involved many
weeks of study during what is called the summer vacation."

The five justices in the majority in Kennedy v. Louisiana
should consider Justice Frankfurter's words -- and spend at least a
part of their summer vacation reconsidering the basis of their decision.

Friday, 01 August 2008

It's not often that the U.S. Supreme Court is asked by
a state and the federal government to reconsider a case it has just
handed down because it missed key evidence.

But that is what is happening now in Kennedy v. Louisiana.
In that case, the court ruled in late June that Louisiana could not
execute someone convicted of violently raping a child. Dividing along
familiar 5-4 lines, the court held, speaking through Justice Anthony
Kennedy, that the death penalty must be reserved for killers and
traitors. To apply it to others, including the most reprehensible
violators of young children, would constitute a "cruel and unusual
punishment" violating the Constitution's Eighth Amendment.

Emphasizing the evolving character of what constitutes
an "unusual" if not an unduly "cruel" punishment, the court rested its
condemnation of executing the rapists of children largely on what it
described as a trend away from the use of death to punish such crimes
both here and abroad.

But there was a problem with the court's understanding
of the basic facts. It failed to take into account -- because nobody
involved in the case had noticed -- that in 2006 no less an authority
than Congress, in the National Defense Authorization Act, had
prescribed capital punishment as a penalty available for the rape of a
child by someone in the military.

Defenders of the court's decision in Kennedy v. Louisiana
would have it ignore that embarrassing wrinkle by treating the military
as a parallel universe that simply does not intersect civilian justice
on the plane of constitutional principle. But a court searching for
universal principles of justice in the name of the Eighth Amendment
would be hard pressed to accept that view of the military/civilian
distinction. Particularly when the court's division tracks the usual
liberal/conservative divide, its credibility depends on both candor and
correctness when it comes to the factual predicates of its rulings.

Whatever one's view of the death penalty -- and I have
long expressed misgivings on both its wisdom and its constitutionality
-- it's important that the inequities and inequalities in its
administration be minimized. Commitment to that principle, not a rush
to the center, lay behind Barack Obama's disagreement with the court's
ruling in this case even before the 2006 federal death penalty
provision came to public attention.

Monday, 28 July 2008

The justices of the U.S.
Supreme Court, Justice Robert H. Jackson once archly observed, are not
final because they are infallible; they're infallible only because they
are final. But what about when they're not?

That
question will be presented to the undoubtedly chagrined jurists when
they return from their summer recess to consider a motion for
reconsideration in one of the court's most celebrated -- and criticized
-- rulings of the past term. The case, Kennedy vs. Louisiana,
established a prohibition against state laws that would subject anyone
but murderers to the death penalty, a welcome result that halted the
expansion of a barbaric exercise of the state's ultimate power.

But in concluding that the nation's "evolving standards of
decency" commanded that ruling, the court relied in part on the
incorrect belief that only six states authorize the death penalty for
the rape of a child. In fact, a federal law and a separate executive
order provide for the penalty under military law. Because of that
mistake, the state of Louisiana has asked the court to reconsider its
ruling.

The
motion seems unlikely to prevail. The existence of the penalty in
military proceedings does not undermine the balance of the court's
rationale, even though it does weaken it incrementally. As such, the
court's ban seems destined to stand.

Under the Court’s rules, a rehearing petition is not subject to oral
argument and will not be granted except by a majority of the Court “at
the instance of a Justice who concurred in the judgment or decision.”
The other side in a case is not allowed to file a response, unless the
Court specifically asks it to do so. The Court’s rules add that,
unless there are “extraordinary circumstances,” rehearing will not be
granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a
vote of 5-4, with Justice Anthony M. Kennedy writing for the majority.
One of those five would have to support rehearing, presumably along
with the four dissenters, for that to happen.

Lawyers for the State of Louisiana asked the United States Supreme Court
on Monday to reconsider its decision last month striking down laws that
made child rape a capital offense. The lawyers said the court’s
decision overlooked two crucial legal developments: a 2006 federal law
and a 2007 executive order making child rape a capital crime under
military law.

“Both political branches have recently and affirmatively authorized
the death penalty for child rape,” the petition said. “Such a clear
expression of democratic will, at the very least, calls into question
the conclusion that there is a ‘national consensus against’ the
practice.”

In his opinion for the majority last month, Justice Anthony M. Kennedy
counted up the number of jurisdictions that allowed the death penalty
for child rape. Finding only six states, he concluded that “on balance”
and in light of “evolving standards of decency,” there is a national
consensus against such punishment.

But none of the briefs filed in the case had alerted the justices to
the two federal legal developments arguably altering that calculus.

The lead lawyer on the rehearing petition is Neal Kumar Katyal, a law professor at Georgetown University who is usually associated with liberal causes. Professor Katyal represented Salim Ahmed Hamdan in the Supreme Court
in a 2006 case that rejected the Bush administration’s initial plans to
put Guantánamo prisoners on trial before military commissions.

“I am personally opposed to the death penalty, but I am also opposed
to courts taking fundamental decisions away from American voters,”
Professor Katyal said. “Since the Supreme Court’s decision came down,
new evidence has emerged that the justices may have been too quick to
identify a national consensus in this case, so when the State of
Louisiana gave me the chance to help, I was happy to accept.”

The Justice Department did not file a brief in the case, Kennedy v.
Louisiana, but it did issue a statement expressing regret for failing
to tell the court about the 2006 law after the oversight was noted in a
military law blog. In a statement on Monday, Erik Ablin, a spokesman
for the department, said lawyers there would review the petition and
consider whether to seek the court’s permission to offer the
government’s views on the case.

Jeffrey L. Fisher, a law professor at Stanford who represented the
defendant in the case, Patrick Kennedy, said “rehearing is completely
unnecessary.” Military law does not apply to Mr. Kennedy, a civilian,
Professor Fisher said, and Congress has not made child rape a capital
offense for civilians.

Louisiana prosecutors asked the Supreme Court on Monday to revisit
its recent decision outlawing the death penalty for people convicted of
raping children.

The unusual request is based on the failure of
anyone involved in the case — lawyers on both sides as well as the
justices — to take account of a change in federal law in 2006 that
authorizes the death penalty for members of the military who are
convicted of child rape.

The court almost never grants such
requests, but lawyers for Louisiana said their situation was different
because the 5-4 decision written by Justice Anthony Kennedy relied in
part on what Kennedy called a "national consensus" against executing
convicted rapists.

The ruling on June 25 drew harsh criticism
from politicians in Louisiana and other states where executing those
who rape children was authorized or under consideration. Presidential
contenders John McCain and Barack Obama also said they disagreed with
the outcome of the case.

But only in the days following the
decision did anyone point out that Congress changed the law and that
President Bush signed an executive order in September 2007 that
implemented the change. It was first discussed on a military law blog.

Louisiana
"regrettably did not know of this federal provision," the state's
lawyers wrote Monday. "This was a significant error, for which
(Louisiana) accepts full responsibility."

Jelpi Picou, director of the Capital Appeals Project in New Orleans,
which helped in Kennedy's appeal, said "the rehearing is really
uncalled for."

He said the military's law allowing the execution of child rapists
predates 1977, when the Supreme Court banned the death penalty for the
rape of an adult. Congress two years ago merely amended the law to say
that consent was not a defense, Picou said, though the military has not
executed a child rapist since 1961.

"I think that the majority is not going to be swayed by the
clarification" to the military law, Picou said. "And I don't think the
minority missed anything."

Carl Tobias, a University of Richmond, Va., law professor not
involved in the Kennedy case, said Connick has "certainly a valid
reason" to seek a rehearing, but justices rarely grant them.

"I'm not sure if that one reason will be sufficiently compelling to overturn the entire case, " Tobias said.

The U.S. Supreme Court, in a 5-4 decision last month, struck down a
Louisiana law that imposed capital punishment for those convicted of
raping a child. At the center of this decision was 43-year-old Patrick
Kennedy, an African American man convicted of the brutal rape of his
then-8-year-old stepdaughter. During the course of the investigation,
the victim gave many varied accounts of her assault, at first blaming
two neighborhood youths and only pointing the finger at her stepfather
after several interviews by psychologists working with law enforcement.

The
majority decision was delivered by Justice Anthony Kennedy of
Sacramento. The court's newest justice, Samuel Alito, delivered a
biting dissent. Justice Alito's opinion is chilling, not because of its
legal reasoning that states should be allowed to enact laws as they see
fit, but for the fact that he took the position that those who are
convicted of raping a child should be executed, owing to the
heinousness of the crime.

The use of capital punishment is
founded upon two principles: retribution and deterrence. The majority
found that evidence suggested the death penalty may not result in more
effective enforcement but may indeed add to the risk of non-reporting.
It's a statistical reality that the majority of sexual assaults on
children occur at the hands of a parent, relative or close family
friend. Thus, children may feel pressured not to report the abuse if
there's a likelihood that the perpetrator may face execution. The idea,
then, that capital punishment will act as a deterrent is unfounded, and
the National Association of Social Workers filed an amicus brief in
support of striking down the law for that reason.

The court takes note of the "relevant systemic concerns in
prosecuting child rape, including the documented problem of unreliable,
induced and even imagined child testimony, which creates a special risk
of wrongful execution in some cases."

There are many problems
with cases involving child testimony. Child molestation cases often
arise in the context of divorces and custody disputes, and there are
often problems with the testimony. One problem that arises quite often
is the problem of suggestive interviewing techniques with children and
the problem of repeated interviews.

I have seen cases where the
interviewer asks the child leading questions (suggestive of the
answer), the child denies the allegations, and the interviewer
continues asking the same leading question in different ways or keeps
coming back to the question, until the child gives the answer the
interviewer is looking for.

This can be compounded by the effect
of multiple suggestive interviews, often beginning with a family member
who may be suspicious or have an ax to grind, followed possibly by
other family members, followed by an officer and then one or more
interviews by a child advocate.

The effect of suggestive
interviews on a very young child, particularly when they are repeated,
is that the child may begin to believe the allegations, even if they
were not true to begin with. The state then has a very credible and
believable witness with which to prosecute its case. In South Carolina
and other states, laws have been passed that would allow the
presentation of videotaped testimony by the child in court - without
the opportunity to cross-examine and in violation of the right to
confront witnesses.

In 2006, the S.C. General Assembly stood up for children when it
passed legislation providing for the death penalty in cases where
someone rapes a child. I led the fight for the inclusion of the death
penalty sentencing in South Carolina's version of Jessica's Law, then
making its way through the General Assembly. I view no moment of my
service in Columbia with more significance than the day we won that
vote.

Justice Anthony Kennedy, the author of the U.S. Supreme
Court opinion, rationalizes the rape of a child as a lesser offense by
saying that " 'in terms of moral depravity and of the injury to the
person and to the public,' they cannot compare to murder in their
'severity and irrevocability …'. " Kennedy's definitions of "severe"
and "irrevocable" apparently do not apply to the rape of a child.

The child-rape decision now joins a series narrowing the death
penalty's scope. Within the past few years, other rulings barred its
use against juveniles and mentally retarded people. The prohibition is
especially welcome in the case of child rape. For one thing, children's
testimony can be unreliable. It may easily be distorted by fear or
imagination, or manipulated by adults. But also, child rapes often
occur within a family. Knowing that a parent or other relative could be
executed may frighten a child into silence, and continued
victimization. Other family members might collude in shielding the
offender.

The high court's decision in no way minimizes the seriousness of
child rape. It does, however, acknowledge the unique character of the
offense, and point toward potentially better responses. At the same
time, it newly underscores the shortcomings of the death penalty.

Thursday, 03 July 2008

That's the title of Linda Greenhouse's report in today's New York Times. LINK

In a highly unusual admission of error, the Justice Department
acknowledged on Wednesday that government lawyers should have known
that Congress had recently made the rape of a child a capital offense
in the military and should have informed the Supreme Court of that fact
while the justices were considering whether death was a constitutional
punishment for the crime.

“It’s true that the parties to the case missed it, but it’s our
responsibility,” the department’s public affairs office said in a
statement.

“We regret,” the statement said, “that the department didn’t catch
the 2006 law when the case of Kennedy v. Louisiana was briefed.”

In that case, decided June 25 by a vote of 5 to 4, the court ruled
that the Constitution prohibits the death penalty for the rape of a
child. Justice Anthony M. Kennedy’s
majority opinion was based in part on the conclusion that because child
rape was a capital offense in only six states, and not under federal
law, the death penalty for the crime did not meet the “evolving
standards of decency” by which the court judges capital punishment.

Justice Kennedy’s conclusion about the absence of federal law was
mistaken. Not only did Congress add child rape to the military death
penalty in 2006, but President Bush, in an executive order last
September, added the new provision to the current version of the Manual
for Courts-Martial.

The solicitor general’s office, which represents the federal
government before the Supreme Court, did not file a brief in the case,
and none of the 10 briefs that were filed informed the justices of the
new federal law.

A civilian Air Force lawyer, Dwight Sullivan, mentioned the omission
over the weekend on his military law blog. The New York Times reported
the oversight in an account that first appeared Tuesday on its Web site.

And:

As the department’s statement noted, only parties to a case can ask
the justices to reconsider their decision. The department might ask the
court for permission to provide its views if Louisiana files a
rehearing petition, the statement added.

Steve Wimberly, the first assistant in the Jefferson Parish, La.,
district attorney’s office, which handled the case for the state before
the Supreme Court, said in an interview Wednesday that while no
decision had yet been made, “we are strongly considering the option of
asking the justices to reconsider the case.”

Mr. Wimberly added that Gov. Bobby Jindal, who denounced the court’s ruling, was involved in deciding how to proceed.

The Justice Department statement was carefully worded to avoid
conceding that under the reasoning of the Supreme Court decision, the
military death penalty provision for child rape is now
unconstitutional.

Kennedy v. Louisiana, the recent
Supreme Court decision outlawing the death penalty for convicted child
rapists, has upset many politicians and much of the citizenry as well.
For example, Sen. John McCain was quoted as calling the decision "an
assault on law enforcement's efforts to punish these heinous felons for
the most despicable crime."

Whatever else might be
said about the decision, it does not prevents the state from punishing
child molesters. Life imprisonment without parole is hardly a pleasant
prospect for anybody. But child molesters are not well-liked in prison,
and from what I understand, those who believe in "an eye for an eye,
tooth for a tooth" form of punishment could not imagine greater
retribution than life imprisonment for a child rapist.

And:

This brings me to my final concern. The death penalty may well deter
children from reporting the rapes against them. It is one thing to send
Uncle Charlie away for a long time because of what he did to the child.
But to kill him because of a little girl's testimony is a lot to put on
the head of an already abused and traumatized child. Surely she does
not need to go through life thinking that her testimony killed her
uncle (or in the Kennedy case, stepfather), about whom she most likely
had ambivalent feelings.

For this reason, the
National Association of Social Workers feared allowing capital
punishment would make it less likely that young rape victims and their
families will report the rape to authorities. If so, there would be
less rather than more punishment of child rapists.

For
all of these reasons and more, the Supreme Court rightly held that the
death penalty for child rapists is cruel and unusual punishment, and,
as such, has no place in any state in this great country. For that, the
court should be applauded, not condemned.

"Anybody in the country who cares
about children should be outraged that we have a Supreme Court that
would issue a decision like this," said Alabama Attorney General Troy
King, a Republican. The justices, he said, are "creating a situation
where the country is a less safe place to grow up."

The court's
5-4 decision Wednesday derailed the efforts of nearly a dozen states
supporting the right to kill those convicted of raping a child — and
said execution was confined to attacks that take a life and to other
crimes including treason and espionage.

A number of politicians have denounced Wednesday's US Supreme Court ruling [Kennedy v. Louisiana opinion text; JURIST report]
that the death penalty constitutes cruel and unusual punishment for the
rape of a child. At a press conference, Democratic Party presidential
candidate Barack Obama (D-Ill) said [MSNBC report] that

[T]he
rape of a small child, six or eight years old is a heinous crime, and
if a state makes a decision that under narrow, limited, well-defined
circumstances, the death penalty is at least potentially applicable,
that does not violate our constitution.

Republican Party presidential nominee John McCain (R-Ariz.) also disagreed with the ruling, commenting [press release]

That
there is a judge anywhere in America who does not believe that the rape
of a child represents the most heinous of crimes, which is deserving of
the most serious of punishments, is profoundly disturbing.

Thursday, 26 June 2008

The U.S. Supreme Court on Wednesday said
states cannot use the death penalty to punish child rapists if the
victim is not killed, erasing a key plank in the so-called Jessica's
Law that Texas lawmakers passed last year.

The Texas law permitted the death penalty, or life in prison without
parole, for the second conviction of aggravated sexual assault of a
child younger than 14. The life-in-prison punishment will remain
available to prosecutors.

And:

Although several state leaders criticized the
Supreme Court's decision, it was especially a setback for Lt. Gov.
David Dewhurst, who put Jessica's Law at the top of his 2007 agenda.

When Texas'
leading politicians called loudly for the death penalty for repeat
child rapists last year, they knew there was a good chance the U.S.
Supreme Court might find the provision unconstitutional. Legal experts
told them so – repeatedly.

And on Wednesday the Supreme Court, in
a 5-4 decision in a Louisiana case, did just that, ruling that "the
death penalty is not a proportional punishment for the rape of a child."

The
decision didn't surprise many, said Shannon Edmonds, staff attorney for
government relations with the Texas District and County Attorneys
Association.

"A lot of legal experts had seen the writing on the
wall from the Supreme Court," he said. "Whether those people, on both
sides, agree with what the Supreme Court was going to do or not, didn't
mean they didn't see it coming."

And:

State Sen.
Rodney Ellis, the Houston Democrat who was the Senate's lone "no" vote
against the death penalty for child sex offenders, said he's pleased
with the Supreme Court ruling.

"At some point we have to decide where to draw the line on something being politically right but morally wrong," he said.

Politicians
seeking to polish their tough-on-crime credentials may have been
disappointed by the decision, but some victims' rights advocates were
pleased.

"We join sexual assault coalitions across the country in
applauding the Supreme Court's step toward ensuring that prosecutions
of child sexual assault across our nation remain victim-centered and
child-friendly in their approach," said a prepared statement released
by the Texas Association Against Sexual Assault.

Some
organizations had warned legislators the law could result in victims
being unwilling to prosecute or perpetrators less likely to leave their
victims alive.

"Most child sexual abuse victims are abused by a
family member or close family friend," the statement from the Texas
association said. "The reality is that child victims and their families
don't want to be responsible for sending a grandparent, cousin or long
time family friend to death row."

Jessica’s Law boosts penalties for those who commit a sexually
violent crime against a child younger than 14. For the first offense,
it’s at least a 25-year prison sentence. For a second offense, the law
calls for the death penalty. A provision in the law states that if the
death penalty is struck down, predators can still be sentenced to life
in prison.

No such cases were pending in Tarrant County, said
Alana Minton, chief of the crimes against children unit in the district
attorney’s office.

Although they will not face execution, criminals who sexually
assault Texas children will serve longer sentences without the
possibility of parole under provisions of Jessica's Law not affected by
Wednesday's U.S. Supreme Court ruling.

No one in Texas has been sentenced to death under the provisions of the law, which went into effect last September.

The death penalty provision — reserved for a narrow category of
repeat child sex offenders — received the most attention last year when
state lawmakers debated the high-profile bill.

But the bill also made other significant changes, including
mandatory minimum sentences and a new offense — continuous sexual abuse
— designed to let prosecutors present cases involving a series of
victims in one trial.

The death
penalty provision was championed by Republican Lt. Gov. David Dewhurst.
He invited Mark Lunsford, a Florida man whose daughter Jessica was
killed by a registered sex offender, to the Capitol to drum up support.

"Jessica's Law" passed the House and Senate with large
majorities. Sensing a constitutional problem, however, the law was
written in a way allowed the courts to strike down the death penalty
provision without damaging other tough sentencing measures.

And:

State Sen.
Rodney Ellis, a Houston Democrat, was the only senator to vote against
the bill. He said the law played on the emotions of an awful crime.

Ellis said the state should not expand use of the death penalty
at a time when dozens of inmates in Texas have been exonerated of their
crimes with DNA testing.

"I always stress that I'm for the death penalty," Ellis said.
"(But) I think it was just playing with people's emotions. What's wrong
with locking people up and throwing away the key?"

Justice Anthony M. Kennedy,
writing for the majority, said there was “a distinction between
intentional first-degree murder on the one hand and nonhomicide crimes
against individual persons,” even “devastating” crimes like the rape of
a child, on the other.

The decision was the third in the last six years to place a
categorical limitation on capital punishment. In 2002, the court barred
the execution of mentally retarded defendants. In 2005, it ruled that
the Constitution bars the death penalty for crimes committed before the
age of 18.

Nonetheless, despite this trend toward narrowing the application of
the death penalty, there was no suggestion from the majority that the
court was moving toward the abolition of capital punishment, which
Justice John Paul Stevens called for in an opinion two months ago that no other justice joined.

Justice Kennedy said on Wednesday that while the court’s death
penalty jurisprudence “remains sound,” it should not be expanded to
cover a crime for which no one has been executed in the United States
for the past 44 years.

Kennedy said that more than 5,700 incidents of vaginal, anal or oral
rape of a child younger than 12 reported were reported in 2005, more
than twice the number of intentional murders of victims of all ages.

The
courts already are overwhelmed with death penalty appeals from the few
murderers who receive it, and Kennedy said it would be nearly
impossible to develop a legal foundation that would ensure that only
the worst child-rapists are executed.

He also said there are
"serious systemic concerns" in prosecuting the crime of child rape,
including that children are highly susceptible to coaching and are
unreliable in testimony. Child advocates oppose the death penalty in
such cases, telling the court that it would lead to underreporting of
the crime, especially when the perpetrator is a family member, and
could also remove any incentive for the rapist not to kill the child.

The decision in Kennedy v. Louisiana
came on the next to last day of the term and did not fit this term's
pattern of generally greater unanimity in decision-making among the
justices.

The Court struck down the death penalty for raping an adult in the 1977 case Coker v. Georgia,
but until Wednesday it had not closed the door completely on executing
those convicted of other non-homicide crimes against individuals.

Though instances of child rape can be "devastating in their harm, as
here," Justice Anthony Kennedy wrote for the majority, "they cannot be
compared to murder in their severity and irrevocability."

Kennedy also wrote, "When the law punishes by death, it risks its
own sudden descent into brutality, transgressing the constitutional
commitment to decency and restraint."

Sen. Barack Obama,
the presumptive Democratic nominee for president, criticized the
court's decision at a Chicago news conference. "I have said repeatedly
that I think that the death penalty should be applied in very narrow
circumstances for the most egregious of crimes," he said. "I think that
the rape of a small child, six or eight years old, is a heinous crime,
and if a state makes a decision that under narrow, limited,
well-defined circumstances, the death penalty is at least potentially
applicable, that that does not violate our Constitution."

Obama has frequently cited the near-abolishment of the death penalty in Illinois as one of his top legislative accomplishments.

His likely Republican opponent, Sen. John McCain,
also disagreed with the ruling. "Today's Supreme Court ruling is an
assault on law enforcement's efforts to punish these heinous felons for
the most despicable crime," McCain said. "That there is a judge
anywhere in America who does not believe that the rape of a child
represents the most heinous of crimes, which is deserving of the most
serious of punishments, is profoundly disturbing."

The high court has pared the death penalty's scope in
recent years in other ways, including cases involving juveniles and
mentally retarded people. The majority said they based their decision,
in part, on what they believe state laws reveal about a national
consensus.

"The evidence of a national consensus with respect to
the death penalty for child rapists, as with respect to juveniles,
mentally retarded offenders and vicarious felony murders, shows divided
opinion but on balance an opinion against it," Justice Kennedy said.

In an opinion by Justice Anthony Kennedy, the
court said the death penalty should cover only murder in crimes against
individuals.
The court specifically said it was not addressing crimes against the government, such as espionage or terrorism.
"There is a distinction between intentional
first-degree murder on the one hand and non-homicide crimes … even
including child rape, on the other," Kennedy wrote, joined by the four
more liberal justices. "The latter crimes may be devastating in their
harm, as here, but in terms of moral depravity and of the injury to the
person and to the public, they cannot be compared to murder in their
severity and irrevocability."

According to Douglas Berman, a professor at Ohio State
University's Moritz College of Law, the justices' ruling appears
ironclad. "In the absence of death, the death penalty is off the
table," he said. "Instead of a highly contextual and nuanced discussion
... the court asserted that states can only use the death penalty
against rapists in the case of death.

"It could have left open the possibility of revamping child rape laws, by age for example, but it did not."

Law professor Deborah Denno of Fordham University wasn't so sure.

"No case is necessarily definitive when you're looking at
specific language," she said. "I don't think this is airtight." It
could be possible to argue applying the death penalty against attackers
who "intended to kill" their victims, but didn't, she said. Or those
who assault especially young children, such as toddlers, she said.

For the law to be just, it must temper society’s anger over even the
most horrible acts with decency and restraint. The Supreme Court
exemplified that principle on Wednesday, striking down the death
penalty for the rape of a child. While acknowledging the horror of the
crime, Justice Anthony Kennedy’s majority opinion drew on widely shared
standards of decency, constitutional law and real-world impact to
explain why the Constitution forbids punishing it with death.

The 5-to-4 ruling also laid down a critical standard: in cases of
crimes against individuals (which excludes treason and espionage) the
death penalty can be applied only when the victim’s life is taken. That
rule should deter efforts to extend the use of capital punishment.

Justice Kennedy wrote that defendant Patrick Kennedy’s rape of his
8-year-old stepdaughter was an act “that cannot be recounted in these
pages in a way sufficient to capture in full the hurt and horror
inflicted.” But the Eighth Amendment, he noted, requires that a penalty
be a “graduated and proportioned” response.

One way the court assesses proportionality is by looking at how
society treats particular crimes. For child rape, he argued, there is a
consensus: Forty-four states do not make it a capital crime. Louisiana
is the only state that has sentenced anyone to death for child rape
since 1964.

The court must also use its own judgment, based on its reading of
the Constitution and of its own precedents. Justice Kennedy argued that
morally, the state’s taking of a life is unique in its severity and
irreparability. It should, he concluded, be limited to homicide, an act
that is in its own category of moral depravity.

The ruling also argued that it was not in the interest of a child
victim to be dragged into a capital case as the complaining witness,
and to compel that child to spend years trying to help the state put
someone to death.

Most
obviously, the ruling continues the court's steady narrowing of capital
punishment's reach. Less noticed is the fact the court has done so at
about the same pace that states have created an alternative that makes
the death penalty pointless, along with the controversy that it
generates. Life in prison without the possibility of parole, which barely existed when the court reinstated executions in 1976, is now an option in 35 of the 36 death-penalty states.

And:

The decision overturns laws in six states that permit executions for child rape.
And it appropriately moves the USA a step further from an irreversible
practice that has proved to be problematic, discriminatory, out of step
with most of the developed world, and no more a deterrent than the
prospect of being locked in a tiny cell for decades.

My commentary on the ruling is here; coverage of the ruling -- and earlier coverage, here.

Wednesday, 25 June 2008

“As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim.”

The Texas Legislature, under some pressure from Lt. Gov. Dewhurst, passed a death penalty provision in spite of the testimony of those who know the problem of child abuse best; sex offender treatment counselors, social workers, others who treat victims of sexual abuse, as well as many prosecutors. The language that Justice Kennedy wrote in today's opinion mirrors the testimony of so many of those experts who testified against this provision in the bill at House and Senate committee hearings.

Lt. Gov Dewhurst had made the death penalty provision a centerpiece of his political platform; it was his highest priority in the session. Texans would have been far better served by allowing the committee process to work as it's designed to, without political interference. In the final analysis legislators discarded the testimony of experts from across the state in favor of a political accommodation. Editorial writers across Texas listened to the experts and urged legislators to drop the death penalty provision, but their voices were also lost on legislators.

Second, it's important to note some numbers. The Court gave great reliance upon our evolving standards of decency in today's ruling, and the passage of state legislation is one measure the Court looks to in assessing that standard.

While various versions of the Jessica's Law proposal have passed in 34 states, only four passed a death penalty provision -- all states with active execution chambers. Texas was the last state to adopt the provision; several states looked at the proposal in 2008 legislative sessions and all rejected it. As the Court noted, 45 jurisdictions do not allow execution for child rape of any kind.

(The Louisiana and Montana laws predated the Jessica's Law model. The original Jessica's Law proposal only called for a death penalty when the child-victim was killed. The other states that passed a non-homicidal death penalty were Georgia, Oklahoma, and South Carolina.)

Finally, Justice Kennedy notes:

"There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a 'special risk of wrongful execution' in some cases."

Given Texas' past record of executions in highly questionable cases, as well as capital and non-capital exonerations, our state should be providing heightened screening to prevent wrongful convictions and executions.

I'd point to several specific posts from the 2007 legislative session:

Monday, 16 June 2008

State Rep. Carl Wimmer, who
sponsored Jessica's Law legislation in Utah, wants to make the worst
sex crimes against children punishable by death.

The U.S. Supreme Court is considering the issue in the appeal
of Patrick Kennedy, 43, on Louisiana's death row for the 2003 rape of
his 8-year-old stepdaughter.

Kennedy is the only person on death row for a rape that didn't
result in murder, and argues it's unconstitutional for him to receive
the death penalty.

The high court banned capital punishment for rape of adult
victims in 1977. Five states - Louisiana, Montana, Oklahoma, South
Carolina and Georgia - still allow for the death penalty if the rape
victim is younger than 12.

And:

State Rep. Carl Wimmer, who
sponsored Jessica's Law, says he'll try to go one step further next
session by pushing to make the same crimes punishable by death if the
U.S. Supreme Court rules the practice constitutional in a pending
Louisiana case.

Two corrections, a second individual sits on death row in Louisiana, convicted of non-homicidal child rape, as noted in this post. Texas also has a non-homicidal death penalty for child rape.

As I've noted before it's striking that only three states have a death penalty component to their version of Jessica's Law, which has found great favor in legislatures across the country.The Jessica's Law index is here.

Although the Supreme Court has yet to decide
some of the most important pending cases before it, it is not too soon
to say that this has been a surprising term. Based on last term’s
record, most prognosticators (including me, I must confess) thought
that this term would see another spate of hard-fought 5-4 decisions in
which the Court split along its well-established ideological divide,
with Justice Anthony Kennedy playing the role of swing justice,
delivering victory to one side or the other. Instead, the Court has
achieved a significantly higher degree of consensus in many cases that
were good candidates for 5-4 battles – with some liberal justices
joining “conservative” decisions and some conservative justices joining
in “liberal” ones.

In this column, I’ll examine some of the cases that might have been
5-4, but were not, and also consider explanations for why the Court has
been able to achieve more consensus than many expected.

That's the title of an article in the current issue of National Law Journal reported by Pamela MacLean. LINK

The creation of complex sex offender registration systems and
increasingly stringent limits on where offenders may live has spawned
hundreds of legal challenges in state and federal courts throughout the
nation.

The actions range from how long electronic tracking devices must be
worn to whether juvenile records must be part of public registrations.

Challenges to the new laws — often hastily passed in the wake of a
brutal crime — generally center on battles over who must comply, making
retroactivity and prospective treatment crucial.

Takings claims under the Fifth Amendment of the U.S. Constitution also
weigh heavily when a sex offender is forced from a long-time home by
newly imposed bans on living near playgrounds or video arcades.

So far, 20 states have laws restricting where sex offenders can live,
and hundreds of cities have their own limits, according to Wayne Logan,
a criminal law professor at Florida State University College of Law in
Tallahassee.

The most common laws banish offenders from zones within 2,000 feet of schools and parks.

The Georgia Supreme Court recently struck down a residency restriction
on Fifth Amendment grounds, but upheld a portion that barred sex
offenders from working in the restricted zones, Logan said. Mann v. Georgia Dept. of Corrections, 282 Ga. 754 (2007).

The California Supreme Court must choose from a raft of theories on how
to apply a 2006 voter-approved residency law prospectively. So far, the
plaintiffs, the state attorney general, local district attorneys, the
governor and state prison officials have all weighed in with different
positions. In re E.J. habeas corpus, No. S156933 (Calif.).

But it is Ohio that finds itself in the midst of a legal meltdown
because of a shift in sex offender registration law. Ohio rushed to
switch from a long-standing state offender registration program to the
2006 federal Adam Walsh Child Protection and Safety Act registration
system.

And:

And the Adam Walsh Act faces federal constitutional challenges. Two
federal circuit courts, the 4th Circuit and the 11th Circuit, are now
considering whether Congress violated the Constitution's commerce
clause in passing the Adam Walsh Act because challengers allege it has
no nexus with interstate commerce. U.S. v. Comstock, No. 06-hc-2195BR, and U.S. v. Powers, 07-cr-221KRS.

Spending time on side issues marked an election-year session where
bills moved slowly, Republicans lacked unity and few major initiatives
passed.

While a burst of activity on the final day Friday salvaged GOP
priorities dealing with immigration and property taxes, the session
will be remembered mostly for intraparty tension and lame-duck leaders'
lack of control.

And:

Legislators also shelved Blunt's proposed changes in abortion laws and
balked at imposing the death penalty for child rapists. In an unusual
move, they even spiked a big increase by his administration in fees for
drivers license records.

The provision was added by voice vote to a larger judiciary bill that
also attracted numerous other amendments. Lawmakers have only until 6
p.m. Friday to pass legislation.

No state has added the death penalty for non-homicidal child rape in 2008. Missouri Governor Matt Blunt had campaigned actively for the provision. Earlier coverage of the legislation in Missouri is here. The Jessica's Law index, with full coverage of the Kennedy v. Louisiana oral argument, is here.

The Missouri Legislature is considering a bill, SB 1194, which would
allow the death penalty for individuals who commit acts of forcible
rape or sodomy of children under the age of 12. On the surface, this
seems to be a logical response to the most heinous of acts perpetrated
upon children, but further analysis will bring us to a very different
conclusion.

As a child advocate and the director of a child advocacy center, I have
seen more than 3,200 victims of sexual violence. I have learned to see
the world through the eyes of children — children who are victims of
sexual abuse. The world is a very different place for these kids than
it is for you and me.

What is real for child abuse victims is that, most frequently, they
know the people who abused them. This very fact creates numerous
barriers to reporting the crime. The children often are threatened to
stay quiet about the abuse and threatened with harm if they tell. If
and when the abuse finally is disclosed, children often are pressured
by family members to recant.

Now imagine the increased pressure to stay quiet if grandpa is going to
face the death penalty. Imagine being a child and being told you are
responsible for grandpa's death. Imagine spending 10 or 15 years in and
out of court as a capital case progresses slowly through the judicial
system. Imagine being a kid and all you want is for the abuse to stop
and, by revealing what has been done to you, you now are being held
accountable for the life-or-death fate of the person who abused you.

Missouri Gov. Matt Blunt
flew in Monday to talk about making the death penalty an option in
cases of forcible rape and forcible sodomy when the victim is younger
than 12 years old.

“The prospect of the ultimate punishment of death will serve as an
effective deterrent against reprehensible and cruel assaults on
children,” Mr. Blunt said at the Buchanan County Courthouse.

The governor is calling on Missouri’s elected representatives to
send him legislation that would allow a prosecutor to seek the death
penalty in cases of forcible rape and forcible sodomy when the victim
is younger than 12 years of age. Mr. Blunt took note of a recent child
rape case in Springfield, Mo., where a 36-year-old man has been charged
with kidnapping and forcibly raping and sodomizing a 7-year-old girl,
whom he left for dead in a burning house.

“Protecting our children is of paramount importance to Missouri
families,” Gov. Blunt said, “and I have called for, fought for and
signed some of the toughest laws in the nation relating to violent
child predators.”

This legislation, according to Senator Goodman, "gives prosecutors the option of pursuing the death penalty for child rapists."

No
legislation will provide complete protection for all children, however,
it is my opinion that the threat of death for those who forcibly rape
or sodomize a child will greatly reduce those acts in Missouri.

Earlier coverage of the Missouri legislation is here. The Missouri General Assembly has this info on the bill. The Jessica's Law index, with full coverage of the Kennedy v. Louisiana oral argument, is here. Similar proposals have failed in other state legislatures this year.

Monday, 28 April 2008

Greene County Prosecutor Darrell Moore cited some of the concerns
listed above as he offered his opinions on the proposed law. He added
he cannot understand why the move has been made to try to broaden
Missouri's use of capital punishment at a time when questions of the
constitutionality of a similar law are pending before the U.S. Supreme
Court in a Louisiana case.

Should the court rule unfavorably toward expansion of the penalty in that case, work by Missouri's lawmakers will be moot.

If
the legislature is doing more than just posturing with its talk of a
death penalty for child rapists, lawmakers must first engage in
serious, analytical discussion with those most directly affected: child
advocates, prosecutors and police.

Viewed in simple terms, the
question of being for or against punishment for those who would
terrorize, hurt and seek callous pleasure from children is easy.

But this is far from a simple issue.

Those who deal with it judicially know that. Those who deal with it legislatively ought to know it, too.

Earlier coverage of the Missouri legislation is here. The Missouri General Assembly has this info on the bill. The Jessica's Law index, with full coverage of the Kennedy v. Louisiana oral argument, is here.

Tuesday, 22 April 2008

A Senate committee passed a bill Monday granting judges and juries the
power to sentence someone to death for forcibly raping or sodomizing a
child younger than 12.

The senators briefly considered two separate amendments -- one
requiring DNA evidence and the other making the death penalty only
applicable for prior sexual offenders -- but decided against creating a
litmus test for a death sentence.

The Senate Judiciary and Civil
and Criminal Jurisprudence passed the bill by a 6-1 vote, with
Democratic Sen. Jolie Justus of Jackson County casting the lone vote of
opposition.

Gov. Matt Blunt, who stumped for the legislation
earlier Monday in Springfield, called a violent sex crime against a
child one of "the worst crimes that any criminal can commit."

And:

The Senate bill, introduced by Sen. Jack Goodman, R- Mount Vernon,
would add the death penalty as an option, but also allow a sentence of
life without parole for such convicts.

Criminals convicted of
raping or sodomizing a child are currently required to spend a minimum
30 years in prison, after the General Assembly toughened penalties for
those crimes in 2006.

And:

The Senate committee's passage of the bill Monday night came at a time of controversy regarding the death penalty itself.

Some
lawmakers want to temporarily halt executions, which had already been
on hold in Missouri until Wednesday, when the U.S. Supreme Court ruled
Kentucky's lethal injection process does not constitute cruel and
unusual punishment.

The Missouri Supreme Court has not yet set
any execution dates in light of that ruling, but a House bill would put
a three-year moratorium on executing inmates on death row while a study
of the practice is conducted by a bipartisan commission.

Given
the polarizing nature of the death penalty debate, Blunt conceded the
Senate bill might face hurdles making it to his desk.

It’s a stance that Nixon, a Democrat now running for Blunt’s job, shares as well.

Nixon and Blunt have attached their name to separate briefs filed
with the U.S. Supreme Court in a case involving a Louisiana man
sentenced to death for raping his eight-year-old stepdaughter at their
home near New Orleans.

The Missouri General Assembly has this info on the bill. Earlier coverage of the Missouri legislation is here and here. The Jessica's Law index, with full coverage of the Kennedy oral argument, is here.

Emphasizing that the most heinous crimes deserve the harshest penalty,
Gov. Matt Blunt said today that child rapists should be eligible for
the death penalty under Missouri law.

The governor, speaking at an afternoon news conference outside the St.
Louis County courthouse, urged the Missouri General Assembly to pass
legislation that would add the sentence of death to forcible rape and
forcible sodomy cases when the victim is younger than 12 years old.

Governor Matt Blunt (R-MO) is renewing his call for the state's
worst sexual predators to be death penalty eligible. The Governor is
asking the General Assembly to send him legislation that would allow
prosecutors to seek the death penalty in cases of forcible rape and
forcible sodomy when the victim is younger than 12-years of age.

In issuing his call, Blunt noted a recent child rape case in
Springfield where a 36-year-old man has been charged with kidnapping
and forcibly raping and sodomizing a 7-year-old girl and leaving her
for dead in a burning house. Blunt strongly believes death should be an
optional penalty for child rape.

Currently Louisiana, Montana, Oklahoma, South Carolina and Texas
have laws that allow capital punishment for a violent offender
convicted of child rape. Alabama, Colorado, Mississippi and Tennessee
also are considering similar laws.

Legislative progress was a key issue in last week's oral argument in Kennedy v. Louisiana, however, so far none of the states that has considered a non-homicidal death penalty in 2008 has passed the provision. Last year, only Oklahoma and Texas -- two active death penalty states -- passed the law.

The Jessica's Law index, with full coverage of the Kennedy oral argument, is here.

Friday, 18 April 2008

Social workers who counsel raped children and nonprofit
groups devoted to combating sexual assault say states do victims
more harm than good when they allow capital punishment for child
rape.

For one thing, the law encourages the rapist to kill the
victim, as he would have little to lose and might get away with
the crime by killing the only witness to it.

So argues a friend-of-the-court brief filed by the National
Association of Social Workers, the National Alliance to End
Sexual Violence and related organizations.

``What's the incentive to keep the victim alive?'' asks Judy
Benitez, executive director of the Louisiana Foundation Against
Sexual Assault.

If the victim survives, reports the crime and the accused
goes to trial, ``Louisiana's law would greatly magnify the trauma
that child victims already experience while participating in the
criminal justice process,'' the social workers say in their
brief.

A death penalty case brings more publicity, more pretrial
hearings, more post-trial hearings and years and years of
appeals, thus requiring the child to relive the trauma time and
again and delaying healing.

Nor is healing helped along by the guilt that can come with
putting your father, your stepfather, your mama's boyfriend, your
teacher or your minister on death row.

But the biggest concern is that a law like this makes the
already serious problem of underreporting even worse.

``Victims are inhibited from coming forward out of shame,
guilt, fear of being punished and fear that the abuser will
retaliate against the victim or other family members,'' the brief
says. Underreporting is most common when the abuser is a
relative, family friend or otherwise close to the victim, as is
the case in 70 percent of child sexual abuse cases.

So anywhere from 67 percent to 90 percent of child sexual
abuse goes unreported, according to multiple studies over the
past decade, as cited by the brief.

``Often the victim has ambivalent feelings toward the
offender,'' Benitez says. ``They want the sexual abuse to stop,
but very often they don't want the offender to go to jail, much
less get the death penalty.''

Earlier coverage of Kennedy v. Louisiana is here. The Jessica's law index is here. More on Coker
v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an
unconstitutional punishment for non-homicidal rape of an adult, is here.

A death-penalty case argued before the
U.S. Supreme Court this week marks the latest constitutional challenge
to an ongoing, nationwide crackdown on sex criminals.

From
California to North Carolina, a flood of litigation has accompanied an
expansion in the scope and severity of penalties imposed by local,
state and federal lawmakers on those who commit sex crimes.

Penalties
for molesters and other sex criminals have toughened considerably in
recent years and now include execution in at least five states,
chemical castration in eight states and the use of technology to
monitor offenders’ every move in more than half the states.

In
some instances, punitive measures are limited only by lawmakers’
imaginations. In Louisiana, for example, a proposal being debated this
legislative session would forbid offenders from wearing masks on
Halloween or Mardi Gras. In New Jersey, a new state law prevents
molesters and others from surfing the Internet unless it is for
work-related purposes; Florida and Nevada have similar laws.

And:

A broad spectrum of critics — including civil-rights organizations such as the American Civil Liberties Union and Human Rights Watch,
law enforcers, prosecuting attorneys and even some victims’ assistance
groups — has criticized some of the recent local, state and federal
laws aimed at sex criminals.

Many say the laws are more
about political opportunism than public safety. Elected officials
recognize that they can appeal to voters by piling up penalties on a
widely detested criminal population that has few advocates willing to
stand up for its rights, critics say.

“It’s still an easy,
no-lose-politically situation,” said Corey Rayburn Yung, a professor at
John Marshall Law School in Chicago and author of a weblog, Sex Crimes, that reports on trends in sex-offender legislation.

Opponents of the death penalty for child
rape have argued that it is a bad idea, because it will deter reporting
of the crime, given the severity of the punishment. That seems
far-fetched, however. To the contrary, you might get more reporting if
the victim thinks that the predator, if convicted, truly will no longer
be able to inflict abuse on them. The same result would follow,
however, if the justice system reliably put away known child abusers
instead of cycling them back into society. Thus, the death penalty and
life sentences have the capacity to motivate victims to report in order
to remove the predator from their lives. (To be sure, survivors of
child sex abuse face many hurdles to reporting, which may not be
affected in any way whatsoever by the potential penalty.)

In
sum, whether or not the Court upholds the death penalty for child
abusers this Term, the entrenched barriers to identifying predators
will not be eliminated, or even reduced. For that reason, from the
perspective of the child being abused today or the survivor trying to
cope in the wake of abuse decades ago, the case is a lot of hype - a
paper battle that distracts from the far more essential battle for the
reforms that are truly necessary if justice and decency are to be
served.

In a 1977 decision out of Georgia, the Supreme Court struck down the
death penalty for a man who had been convicted of raping a 16-year-old
girl. She was deemed an adult. The question now is whether this
precedent extends to cases involving the rape of a child.

Texas
and Louisiana are among five states that permit child rapists to be
executed. Missouri and other states have been debating adopting similar
punishments, and law-and-order advocates contend that there's a push
toward expanding the death penalty.

"The trend ... has been more
and more states are passing statutes imposing the death penalty in
situations that do not result in death," Chief Justice John Roberts
said.

This could prove to be the key to the latest case.

Kennedy's
attorneys argue that the death penalty violates the Eighth Amendment's
ban on "cruel and unusual punishment," because it's disproportionately
harsh for a nonfatal crime. In recent years, for instance, the court
has cited laws passed by states and other countries in striking down
the death penalty for juveniles.

On Wednesday, Roberts and
Justice Antonin Scalia said that standards were moving in the direction
of tougher punishment for those who harmed children.

"It's the trend that counts," Scalia said.

Kennedy's
attorneys, and death penalty skeptics more generally, counter that
there can be no general consensus when only two men have been sentenced
to death for child rape in the past 13 years. The other condemned
inmate, imprisoned with Kennedy in Louisiana, was convicted of raping a
5-year-old girl.

No one has been executed solely for the crime of
rape in the United States in the past 43 years, Kennedy's attorney
Jeffrey Fisher, a Stanford Law School professor, told the court.

Immediately after announcing the lethal injection decision on
Wednesday, the court turned to the argument in the Louisiana case on
the constitutionality of the death penalty for raping a child.

It
has been 43 years since anyone has been executed in the United States
for rape. In 1977, with 30 men on death row for rape, the court ruled
in a Georgia case that the Eighth Amendment prohibited the death
penalty for that crime. The victim in that case, Coker v. Georgia, was
a 16-year-old married woman who was referred to as an adult throughout
the opinion.

While the question presented to the court in the
Coker case did not differentiate between adults and children, the
decision for years was widely interpreted as barring capital punishment
for any rape. Nonetheless, Louisiana enacted its law in 1995, and
several other states followed suit, for a current total of five that
permit the death penalty for the rape of a child.

The justices’
questions from the bench indicated that most saw the Coker decision as
limited to adult victims, with the issue of whether death could be
imposed for raping a child still an open one, not governed by
precedent. Patrick Kennedy, the defendant in this case, Kennedy v.
Louisiana, No. 07-343, was convicted of raping his 8-year-old
step-daughter.

Only in Louisiana could he have received the death
penalty, because the other states, Montana, Oklahoma, South Carolina
and Texas, apply their laws only to those with prior convictions. Mr.
Kennedy’s lawyer, Jeffrey L. Fisher, argued that this demonstrated a
“national consensus” against the penalty, at least for a first-time
offender.

Members of the U.S. Supreme Court's
conservative wing Wednesday vigorously defended
Louisiana's toughest-in-the-nation law allowing the
death penalty for those who rape children.

The death sentence imposed on Patrick Kennedy, 44, of
Harvey, would bring the first execution in the United States
since 1964 of someone for any crime other than murder and
presents the court with the chance to settle long-simmering
questions about just how far capital punishment should
reach.

Louisiana is one of five states to allow the death
penalty in child rape cases. Unlike the others, however,
juries in Louisiana can impose death on first-time
offenders.

And:

Justice Stephen Breyer took the lead in challenging
Louisiana's statute, which was upheld last year by the
state Supreme Court. Breyer said that allowing the execution
of child rapists would prompt state legislatures to extend
the application of capital punishment to all manner of
crimes.

"I'm not a moralist. I'm a judge. As a
judge, I look at the law. It seems for 43 years no one has
been executed but for murder," Breyer said. "If I
accept your argument, have I then opened the door so that
states will find lots of different crimes which are
seriously horrible?"

Wednesday, 16 April 2008

Kennedy's lawyers say more states have rejected the death penalty
for child rapists and that the reasoning of the court's 1977 decision —
that death is an excessive penalty for a rapist who does not also kill
— should apply even when the victim is a child.

Groups that work
to prevent sexual violence also have sided with Kennedy. They say
victims often know their attacker — a relative or family friend — and
that more rapes will go unreported if children have to worry that their
words might lead to an execution.

The other inmate, Richard
Davis, was sentenced to death in the Shreveport area in December. He
has just begun appealing his conviction and sentence.

When the Supreme Court debates and then casts its first votes in
private on Friday in the case testing the constitutionality of the
death penalty for the crime of raping a child, the key points at issue
may well be the meaning of a 1977 decision (Coker v. Georgia),
and the uniqueness of the Louisiana law and, especially, its apparent
lack of limits on its reach. Those were the obvious highlights of the
64-minute hearing the Justices held in Kennedy v. Louisiana.
A further point of seeming importance: Justice Anthony M. Kennedy,
perhaps once again holding the decisive vote, spent considerable effort
looking for ways to allow a death sentence for child rape, but only in
narrow, strictly confined circumstances.

The hearing moved back and forth between pondering the scope of Coker
— a case in which only a plurality of four Justices spoke directly on
the principal conclusion — and weighing the sweeping nature of the
Louisiana law at issue. The Court appeared less interested in whether
the nation’s state legislatures were embarked on a trend to imitate —
or not – Louisiana; in other words, the question of whether a trend is
running against, or in favor of, executing a rapist whose victim is a
child. These impressions suggested that the challengers to Louisiana’s
law had better success with their backup argument than with their
primary claim.

At the opening of the argument by Stanford law professor Jeffrey L.
Fisher, representing death-row inmate Patrick Kennedy, he summarized
his two points: first, that there is a “national consensus” against
executing those who commit child rape, and, second, Louisiana alone
does not limit who among child rapists would actually be eligible for
the death penalty — that is, that state’s law lacks a narrowing factor.

Previews and earlier coverage are here and here. The Jessica's Law index is
here.
More on Coker
v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an
unconstitutional punishment for non-homicidal rape of an adult, is here. The
SCOTUSwiki page for Kennedy v. Louisiana is here.

Since it reinstated capital punishment, the court has held that the
Eighth Amendment’s bar on cruel and unusual punishment prohibits
applying it to some defendants, such as the mentally retarded, and to
certain crimes. In a 1977 case involving the rape of an adult, Coker v.
Georgia, the court said “the death penalty, which is unique in its
severity and irrevocability, is an excessive penalty for the rapist
who, as such, does not take human life.”

Since then, the court has repeatedly interpreted Coker as holding
that the death penalty cannot be applied in cases of person-on-person
violence other than murder or reckless disregard for life. It has
barred it for kidnapping and for some accomplices to murder. (The
applicability of the death penalty to mass crimes like espionage and
treason is a separate question.)

Louisiana thought it saw an opening in Coker, however, in cases of
child rape, which the decision did not expressly mention. The state
passed a law making rape of a victim younger than 12 punishable by
death.

We believe capital punishment is always wrong and unconstitutional,
but there are more specific reasons not to affirm Mr. Kennedy’s
sentence. If it did so, the court would be overturning its own
well-settled precedents. It would also be rejecting a nearly national
consensus. Louisiana is one of just a handful of states that punish
child rape with death, and the only one that does so for first-time
criminals. No other Western nations do that, and the few countries that
do — including Saudi Arabia and Egypt — are not ones to emulate.

If the court allows the death penalty for child rape, it would be
opening the door for the same punishment to be extended to other
crimes. That would be wrong, particularly now, when the growing number
of cases of innocent people being freed from death row is turning
popular opinion against capital punishment. The court should reverse
Mr. Kennedy’s unconstitutional sentence.

As a matter of policy and conscience, we have long opposed capital
punishment, even for murder. To allow capital punishment for a crime
that stops short of murder would only open the door for an even broader
application of the death penalty, with no clear delineation. And while
a few states in recent years have passed capital punishment laws for
cases of child rape, the absence of such laws in the vast majority of
states suggests that the nation as a whole condemns the application of
the death penalty for anything other than murder, suggesting that
Louisiana's law is not in sync with the court's "evolving standards of
decency."

A compelling argument against applying the death
penalty to cases of child rape is made in a friend-of-the-court brief
filed by a coalition of social workers and interest groups that work on
behalf of victims of sexual abuse. The coalition argues convincingly
that the already gross underreporting of child sexual abuse might only
be exacerbated if the death penalty were imposed in such cases. In most
such cases, the perpetrators are family members or acquaintances;
children might be even more frightened to report a crime if they
thought they'd be responsible for the death of someone they knew or
even loved. Even if the child was brave enough to come forward, a
family member with ties to the offender could prevent disclosure to law
enforcement authorities. Life imprisonment without the possibility of
parole is a better alternative to keep children beyond the reach of
sexual psychopaths.

Louisiana is one of six states authorizing a death sentence for child rape. The others are Georgia, Montana, Oklahoma, South
Carolina, and Texas. Several other states are debating similar measures.

Each
side argues that its position is supported by a national consensus.
Kennedy's lawyers say that only a handful of states with the death
penalty authorize it for child rape, and that most states' rejection of
it demonstrates a consensus that it is excessive.

Supporters of the Louisiana law counter that recently enacted child rape laws suggest the beginning of a trend toward a national
consensus that capital punishment is appropriate.

As
a fallback position, Kennedy's lawyers argue that even if a majority of
justices rule that states can execute child rapists, the Louisiana law
at issue must be struck down because it does not sufficiently ensure
that only the worst child rapists will face execution.

In a series of rulings over the past 30 years,
the high court has established a system of safeguards to prevent the
arbitrary imposition of a death sentence. One of those suggests that
state laws like Louisiana's must differentiate between child rapes that
are deserving of the death penalty and those that are not.

David Bruck, a defense lawyer who has successfully argued six death
penalty cases in the Supreme Court, said a decision that the Louisiana
law is unconstitutional could also nullify the death penalty provision
in what is known in Texas as Jessica's Law. That law, passed last year,
permits the death penalty, or life in prison without parole, for the
second conviction of aggravated sexual assault of a child younger than
14.

Lt. Gov. David Dewhurst said Monday that the Texas law was crafted
to withstand a constitutional challenge and that it is substantially
different from the Louisiana law, pointing out that in Texas, two
convictions are required before the death penalty can be sought.

"In the unlikely event the Supreme Court rules the death penalty is
unconstitutional," Dewhurst said, "Texas' law would remain in effect
without the death penalty provision, allowing prosecutors to seek a
life in prison without the possibility of parole."

Texas says
sometimes the sexual assault of a child can be so violent or obscene
that the only appropriate punishment is to execute the offender.

And Wednesday, Texas Solicitor General Ted Cruz will make that case to
the U.S. Supreme Court, arguing that state legislatures have the
constitutional right to allow the death penalty for child rapists.

The case before the court, Kennedy vs. Louisiana, concerns a Louisiana
law and the case of a Jefferson Parrish, La., man convicted of raping
his 8-year-old stepdaughter. But striking down that law could call into
question Texas’ 2007 “Jessica’s Law,” which allows the execution of
certain repeat child sex offenders.

Annette Clay, executive director of the Texas Association Against
Sexual Assault, doesn't think any punishment is too harsh for sexual
predators who attack children. Still, she opposes the new Texas law.

Clay
and others say that family members or close friends are responsible for
most sexual assaults of children and that those assaults are already
reported at a dismally low rate. The possibility that the attacker will
be executed creates an even bigger disincentive, she said.

Strangers who raped would have no incentive to let their victims live, Clay added.

"I
understand where they are coming from and I appreciate their motives,
but where my concerns are is that the results will be very different
from what they intended," Clay said.

And:

Six states allow for the execution of child rapists: Florida, Louisiana, Montana, Oklahoma, South Carolina and Texas.

Texas,
South Carolina, Oklahoma and Montana allow the death penalty for child
rape, but only for repeat offenders. In Texas, prosecutors can seek the
death penalty or life without parole only after a second conviction of
aggravated sexual assault of a child under 14.

In recent years, more than a dozen people wrongfully convicted of child rape have been exonerated.

Child
sex abuse is one of the most underreported crimes. According to one
study, 83 percent of female rape survivors under 18 do not report the
abuse to authorities. Another study states that in the rapes of girls
12 or younger, 96 percent knew the rapist.

The Jessica's Law index is
here.
More on Coker
v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an
unconstitutional punishment for non-homicidal rape of an adult, is here. The
SCOTUSwiki page for Kennedy v. Louisiana is here.

Tuesday, 15 April 2008

It has been 44 years since the last
execution in the U.S. for rape or any other crime except murder.
Whether that hiatus continues is now up to the Supreme Court.

The justices will hear arguments tomorrow on behalf of
Patrick Kennedy, who was sentenced to death in Louisiana for
raping his 8-year-old stepdaughter. Kennedy's lawyers contend
that his execution would violate the constitutional ban on
``cruel and unusual'' punishment.

Louisiana is one of five states that explicitly permit the
execution of people who rape a child. Kennedy, 44, and another
Louisiana man convicted of child rape are the only people in the
nation on death row for a non-homicide crime.

``There's an overwhelming national consensus that the death
penalty is inappropriate for any kind of rape,'' said Jeffrey
Fisher, a Stanford Law School professor who will argue Kennedy's
case before the justices.

In upholding Kennedy's death sentence, the Louisiana Supreme
Court called child rape ``the most heinous of all non-homicide
crimes'' and said execution was an appropriate penalty.

The outcome of the case will probably turn on whether the
U.S. Supreme Court sees that view as sufficiently widespread. In
previous disputes over cruel and unusual punishment, the court
has asked whether a ``national consensus'' exists against the
death penalty in certain circumstances.

The last time someone in the U.S. was executed for something other
than murder was in 1964, when a man went to the electric chair in
Alabama for robbery. That same year, a man in Missouri went to the gas
chamber in what was the last time someone in this country was put to
death for rape.

Louisiana is the only state with someone on death
row for rape of an adult or child. In fact, it has two people awaiting
execution for child rape. At least five other states — Georgia,
Montana, Oklahoma, South Carolina and Texas — have similar laws.

"These
are the only two men on any death row in any Western democracy for this
offense," said Billy Sothern, a lawyer with the Capital Appeals
Project, a nonprofit law firm that represents the Louisiana man at the
center of the Supreme Court case, Patrick Kennedy.

Kennedy, a
43-year-old man with an IQ of 70, was convicted and sentenced to death
for raping his 8-year-old stepdaughter in 1998 in Harvey, a New Orleans
suburb.

The Louisiana law — which applies to anyone found guilty
of aggravated rape of a child 12 or younger — breezed through the state
Legislature in 1995; members got sidetracked only over whether to
castrate child rapists.

"That's one of my proudest pieces of
legislation," said former state Rep. Pete Schneider, a Slidell brick
manufacturer and Republican.

The other man on death row in
Louisiana for child rape is Richard Davis, convicted of repeatedly
attacking a 5-year-old girl he looked after with his girlfriend in 2004
and 2005. The man who prosecuted him, Brady O'Callaghan, said child
rape deserves the death penalty.

"It is so evil. There is no justification for it," he said. "This isn't a heat-of-passion killing. It's not about money."

Opponents,
including the National Association of Social Workers and the National
Alliance to End Sexual Violence, warn that the prospect of the death
penalty could give child rapists a powerful incentive to kill their
victims. They might figure they have nothing to lose by killing the
lone witness.

Also, child advocates warn that children, in many
cases, are raped by people they know, and executing a relative could
traumatize a youngster. Also, the law might make it harder to prosecute
such cases by making children afraid to speak up for fear of what might
happen to a relative, said Dr. Scott Benton, a pediatric forensic
physician.

The debate has flared anew in Slidell, where
41-year-old janitor Dino Jay Schwertz was accused last month of child
rape. Police say he confessed to the crimes.

Our coverage of other previews, with links to earlier coverage, is here. The Jessica's Law index is here. More on Coker v. Georgia,
the 1977 U.S. Supreme Court that ruled the death penalty an
unconstitutional punishment for non-homicidal rape of an adult, is here. The SCOTUSwiki page for Kennedy v. Louisiana is here.

Monday, 14 April 2008

Nikiski state Rep. Mike Chenault served notice on his colleagues last
week: Next session, he will push to reinstate the death penalty in
Alaska.

If he does, it will be a distraction the next Legislature doesn't need.
Legislators have only 90 days to do their work each session, so they
don't have time for tough-on-crime posturing. Over the years, Alaska
legislators have shrugged off similar calls to reinstate the death
penalty, and for good reason.

The
death penalty is state-sanctioned, premeditated revenge killing. It is
the kind of barbaric "justice" practiced in countries like Kazakhstan,
Saudi Arabia and Zimbabwe.

Besides,
to an offender sentenced to life imprisonment without parole, the
burden of knowing you will live your entire life in prison can be a
fate worse than death.

Like all
human institutions, the justice system is imperfect. Sometimes innocent
people are sentenced to die. According to the Death Penalty Information
Center, 128 inmates who were exonerated or didn't get fair trials have
been freed from death row since 1973, when legal executions resumed in
the U.S. With the death penalty, the chance of irreversible error is
too high.

Back in 2003, during a
local anti-death penalty event, Florence Ward offered Alaskans a
healthy perspective on the subject. Her niece was one of four youths
killed by Charles Meach in Russian Jack Springs Park in 1982. Ward said
Meach fully deserved his 396-year prison sentence, but she didn't want
to see him put to death.

"I just
think there's so many inequities in it," Ward said. "I personally
couldn't do it, and I'm not about to ask anyone to do it."

Ever since the Supreme Court reinstated the death penalty more than 30 years ago, justices have been finding ways to limit it.

In
the intervening years, they have employed their interpretations of
society's "evolving standards of decency" to remove juvenile and
mentally retarded killers from death row.

Before that, they
excluded kidnappers who did not kill and even some accomplices to
murder. In 1977 the court also concluded that a state could not execute
a man who raped an adult woman.

But on Wednesday the court will consider whether a person who rapes a child is different. Louisiana
prosecutors will argue that the same societal mores that have persuaded
justices to spare certain categories of criminals lead in the opposite
direction when it comes to child rapists, demanding an expansion of
capital punishment, not a retrenchment.

Proponents say society
demands retribution for those who harm its most vulnerable members. But
some child advocacy experts say the unintended consequences of the
death penalty might be a decline in the reporting of sexual assaults by
family members, or even an incentive for the rapist to kill the victim.

The
argument comes as the court has imposed a de facto moratorium on
capital punishment while justices decide in a separate case whether the
current methods of lethal injection are constitutional.

Even as
the number of death sentences imposed in the United States has fallen
-- there were the fewest last year since capital punishment was
reinstated in 1976 -- Louisiana and a handful of other states have
changed their laws to allow executions for those who rape children.
They are supported by additional states that say they might want to do
so in the future.

"The 'evolving standards of decency' framework
is not a one-way street that may lead only towards the elimination of
the death penalty," the state of Texas
argues in a brief joined by eight other states. "Each state's
legislature should be allowed to . . . reflect its citizens' current
moral judgment regarding the just deserts for certain capital crimes."

Of
the 3,300 inmates on death row across the country, only two are there
for a crime other than murder. Both were convicted under Louisiana's
child rape statute, passed in 1995 and still the broadest in the land.

The state of Louisiana says Patrick Kennedy raped his stepdaughter. The question now is whether he should die for it.

The answer has consequences for the nation's criminal justice system.
If the U.S. Supreme Court allows Louisiana to execute Kennedy, he would
be the first person in America put to death in almost half a century
for a crime that didn't involve taking the life of another person.

Kennedy was convicted in 2003 of assaulting his 8-year-old stepdaughter
and sentenced to death. Louisiana is one of a handful of states that
have made the rape of a child a capital crime. His challenge to that
law comes before the high court this week.

Kennedy's lawyers argue that the law is a violation of the
Constitution's 8th Amendment, which forbids cruel and unusual
punishment.

While the law that will guide the court's decision is modern, the
justices' inspiration reaches back beyond the Bible. The concept of "an
eye for an eye" was written in Exodus and, before that, by the ancient
Babylonian ruler Hammurabi. Accordingly, the justices will have to
decide whether Kennedy's sentence is "proportionate" to his crime.

For four decades, absent such high crimes against the nation as
treason, American law has mostly drawn a line when it comes to the
death penalty: Only death warranted death. Any lesser crime, even rape,
invited a lesser punishment.

Now the justices may be poised to rewrite that rule, potentially
opening a series of questions about what other offenses merit the
ultimate, irrevocable penalty, and perhaps inviting states to broaden
the class of residents on Death Row.

"I think it would be an enormous move," said Corey Rayburn Yung, a
professor at John Marshall Law School in Chicago. "It would open the
door for all kinds [of new capital crimes]."

More than simply challenging the Louisiana law, Kennedy and his lawyers
argue that he was wrongfully convicted, that two neighborhood boys
committed the crime. However, the question of his guilt won't be
addressed by the justices when they hear the case Wednesday.

Legal experts say a ruling would clarify a 1977 U.S. Supreme Court
decision, Coker v. Georgia, which banned the death penalty for rape of
an adult.

"We're basically just saying the United States Supreme Court should
follow Coker," said Billy Sothern of the Capital Appeals Project in New
Orleans, which represents Kennedy.

The case is not expected to have widespread impact on whether death
is the appropriate punishment for offenses in which victims do not die.
Only two men are on death row for raping children, both in Louisiana.
Four other states have similar laws.

"Obviously, if the Supreme Court says that the death penalty is a
disproportionate punishment for the crime of a rape of a child, then
that would invalidate the Louisiana statute and it would invalidate the
statutes in several other states," said John Blume, a Cornell
University law professor and director of the Cornell Death Penalty
Project. "It would shut the door on that issue, which many people
thought had been shut in Coker v. Georgia."

Until December, Kennedy, 43, was the only person out of more than
3,300 nationwide who was on death row for rape. He was convicted in
2003 of raping an 8-year-old relative in the Woodmere subdivision March
2, 1998.

There are more than 3,300 people on death row in the United States —
but only two of them await execution for crimes that didn't involve
murder.

This week, the Supreme Court will consider the case of one of them,
Patrick Kennedy, a Louisiana man convicted of raping his 8-year-old
step-daughter.

The case comes before the nation's highest court at a time when the
justices are becoming increasingly skeptical about the death penalty
and willing to curb its use.

Texas and eight other states have intervened in Kennedy's case to
urge the Supreme Court to allow the death penalty for child rape. Texas
Solicitor General Ted Cruz, who leads the group, will appear before the
justices Wednesday to press the views for those states.

An earlier preview by Joan Biskupic is here. The Jessica's Law index is here. More on Coker v. Georgia,
the 1977 U.S. Supreme Court that ruled the death penalty an
unconstitutional punishment for non-homicidal rape of an adult, is here.

Colorado lawmakers have rejected a bill
that would have allowed the execution of people who sexually assault
children younger than age 13.

The Senate Appropriations Committee voted 6-4 today against the
Senate Bill 195, which would have cost about $616,000 next year for
trials, appeals, public defenders and prison costs.

Democratic Sen. Moe Keller of Wheat Ridge says social workers
are worried that family members who rape children could intimidate
their victims by saying the abuser would be killed if the victim tells.

Earlier coverage of the Colorado legislation is here. This Wednesday, the U.S. Supreme Court hears oral arguments in Kennedy v. Louisiana, which raises the constitutionality of the death penalty for the non-homicidal rape of a child. Earlier coverage of the case is here.

The Louisiana law pre-dates Jessica's Law death penalty provisions, sparked by the death and murder of a child in Florida. The JML Foundation says that 33
states have passed some form of Jessica's Law. Only those in Florida,
Oklahoma, South Carolina, and Texas contain a possible death penalty
for non-homicidal child rape. In addition to Louisiana, Montana also has a similar
provisions that pre-date the Jessica's Law proposals. Only two men in America are have been sentenced to death for non-homicidal rape of a child; both in Louisiana.

The Jessica's Law index is here. More on Coker v. Georgia,
the 1977 U.S. Supreme Court that ruled the death penalty an
unconstitutional punishment for non-homicidal rape of an adult, is here.

Wednesday, 09 April 2008

House Finance Committee Co-Chairman Mike Chenault brought up the issue in committee Monday during discussion of a bill to require sex offenders to register their e-mail addresses with the state.

He proposed an amendment to authorize capital punishment for certain crimes against children, then withdrew the amendment after a short debate.

Chenault said he wanted to surprise the bill sponsor, freshman Democrat Bill Wielechowski of Anchorage.

But he said he also intends to bring forward death penalty legislation next year, if he's elected to a fifth term.

And:

The Territory of Alaska abolished capital punishment in 1957.

The last people executed in Alaska were two men who were convicted separately in the same crime. Austin Nelson and Eugene LaMoore were convicted of the December 1946 murder of Juneau shopkeeper Jim Ellen. Ellen's store was also robbed.

The two men were executed by hanging, Nelson on July 1, 1947, and LaMoore on March 1, 1948.

Attorney Avril Lerman of Anchorage researched the history of the death penalty in Alaska in a report for the Judicial Center at the University of Alaska Anchorage. Lerman said questions were later raised about LaMoore's conviction. She said the questions likely contributed to the abolition of the death penalty.

"It was an illustration of the extent to which human beings are human in too many ways to wield that sword," Lerman said.

Tuesday, 08 April 2008

The Supreme Court will weigh the constitutionality of the death penalty for child rape next week, in the case of a Louisiana man convicted of raping his 8-year-old stepdaughter.The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death. The justices said no in the case three decades ago, involving a 16-year-old married woman whom the court referred to as an adult.

Several states, including Missouri, have signaled that if the court permits the death penalty for child rape in Louisiana, they may try to enact such laws. Five states already plainly allow capital punishment for raping young children. Social workers warn that if the court sanctions the penalty for child rape, it could further discourage reporting of the crime because in the majority of child sexual assaults, the attacker is a relative or friend of the victim.

The dispute the justices will hear next Wednesday arises as prosecutors nationwide are obtaining significantly fewer death sentences annually than a decade ago. A de facto moratorium on capital punishment is also in place while the Supreme Court considers a separate dispute over lethal injection.

Louisiana argues that national outrage over sex crimes against children, along with efforts by some states to make rape a death penalty offense, should lead the court to uphold a Louisiana death sentence for Patrick Kennedy.

The trend, asserts Juliet Clark, assistant Jefferson Parish district attorney, "strongly supports imposition of the death penalty for this exceedingly grave offense."

Kennedy's lawyer counters that there are signs that society believes death is excessive for rape, including that no one in America has been executed for any rape in more than 43 years. "Although rape is a very serious crime," attorney Jeffrey Fisher says, "no rapist should be punished more severely than the average … murderer, who by definition is not subject to capital punishment." The death penalty has traditionally been reserved for the worst of society's criminals.

The justices' view of such societal trends will matter in Kennedy v. Louisiana, because the court looks for evidence of a national consensus when deciding whether a sentence violates notions of decency embodied in the Eighth Amendment ban on cruel and unusual punishment.

And:

Texas Solicitor General Ted Cruz, who will argue on behalf of nine other states supporting Louisiana's position, says, "The Constitution permits democratically elected legislatures to choose to allow the most serious punishment for the very worst child rapists."

The states that have signed Cruz's brief are Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina and Washington.

Among the groups siding with Kennedy, who is African-American, are the American Civil Liberties Union, which emphasizes the South's history of executing blacks for rape more often than whites, and the National Association of Social Workers.

Joining the social worker group, Judy Benitez, director of the Louisiana Foundation against Sexual Assault, said most sexual abuse is committed by victims' relatives or friends. "This can lead to ambivalence on the part of the victim and her family about reporting the abuse," Benitez said. "We believe that if the specter of the death penalty is out there, it will lead to more underreporting. The victim might think, 'I wanted the abuse to stop, but I didn't want him to die.' "

Thursday, 03 April 2008

Approval of the state budget for the fiscal year beginning July 1, a
process the Senate took up this week, means many programs will have
extra funding assured. But because the Joint Budget Committee allocated
only $2 million for bills that have yet to pass out of the Legislature
this year, several hundred measures are competing for a relatively
small pot of cash. Many sponsors are resigned, in fact, to see bills
that passed out of other committees die at the hands of the House or
Senate appropriations committees, the purse keepers of the General
Assembly.

And it notes that one of the bills likely to die because of lack of funding is:

• Senate Bill 195, the effort to make people convicted of sexually
assaulting a child under the age of 12 eligible for the death penalty.

Friday, 21 March 2008

That's the title of an OpEd in the Summit (CO) Daily News by retired police officer Gary Lindstrom.

Last week I read a headline that said, “Senate
committee approves death penalty for sex assaults on kids.” The senate
committee said in effect that anyone who sexually assaults a child
under the age of 12 should be executed. I think that the committee that
passed that bill needs to rethink what they did.

I was a police
officer for most of the time from 1964 to 1995. I will assure the
committee and anyone else that the seriousness of the sentence has
little or no impact on whether or not a criminal will commit a crime.
They just never think about it. If it were true then there would be
very few crimes committed.

I worked in the Fifth Judicial
District Office of the District Attorney in 1976, 1977 and 1978. Even
the district attorney at the time did not know what the sentence was
for any particular crime. The DA, his deputies, the complaint clerk and
I as chief investigator did not know the penalty was for any crime. We
always had to look it up. I am sure that the judges do the same thing.
I doubt if any criminal ever looks up the penalty for his or her crime
before he or she commits the crime.

Yet there are some people
who delude themselves into believing that criminals are deterred by a
severe punishment for doing a crime.

Colorado does remain as one
of 36 states with the death penalty. That is also a major waste of time
and money. I am sure that in the remaining 14 states without the death
penalty that their murder rates are not necessarily higher.

And:

In the case of the sick degenerate men and women
who molest children under the age of 12 the correct response is to
incarcerate them. Not in prison but in a mental health facility. They
are the sickest of the sick people in this world and need to be removed
from society but they will never change their behavior in prison.
Prison will probably only make their behavior worse.

The OpEd originally appeared on March 16. Thanks to a loyal reader for forwarding.

Missouri Gov. Matt Blunt today filed a brief with the U.S. Supreme Court supporting the death penalty for child rapists.

The amici curiae, or “friends of the court” brief
supports the state of Louisiana, which is defending before the court a
law authorizing the death penalty for offenders who rape children under
the age of 12.

Blunt proposed a similar law for Missouri last
December and bills have been introduced in both houses to do so,
although neither has been heard in committee.

Opponents argue such laws only encourage child rapists to kill their victims.

The brief references the case of Michael Devlin,
the suburban St. Louis man who kidnapped two boys — one for more than
four years — and repeatedly sexually abused them before being caught
early last year. Devlin has since been sentenced to prison for 170
years and 74 life sentences.

The brief goes on to argue that the court “should
not foreclose a national debate on appropriate punishment for child
rape” and that discussion at the state level is the best way to
determine the national consensus on the issue.

Blunt’s brief is also signed by 28 state lawmakers, including Kansas City-area Republicans Sen. Luann Ridgeway and Reps. Jason Brown and Tim Flook.

At issue in Kennedy- and in Loudon’s “Devlin Law” - is a
fundamental constitutional question: Does enforcing the death penalty
for a crime other than murder violate the Eighth Amendment’s ban
against “cruel and unusual punishment?”

The Louisiana Supreme Court believes it doesn’t, saying in its lower-court ruling
that “if the court is going to exercise its independent judgment to
validate the death penalty for any non-homicide crime, it is going to
be child rape.”

“Violent sex offenses against children are unspeakable crimes,
crimes so horrific that they defy comprehension and demand harsh
punishment,” Blunt said. “Crimes like these deserve the most serious
punishment we can possibly deliver.”

The opposition will most likely rely on an earlier decision, Coker v. Georgia, which said that while rape is a heinous crime, only murder meets the criteria for the state’s highest penalty.

Oral arguments in the Kennedy case are scheduled for next month. It’s unclear how the timing of the case will effect the bill in Jefferson City.

Wednesday, 19 March 2008

That's the title of an editorial in today's Denver Post concerning a death penalty bill Colorado legislators are considering. LINK

A bill pending in the Colorado Senate
that would authorize a death sentence on a second conviction of raping
a child could backfire by giving some of society's most vicious
criminals a perverse incentive to kill their victims.

Senate Bill 195 by Sen. Steve Ward, R-Littleton, would
authorize the death penalty for people who sexually assault a child 12
years or younger if DNA evidence links them to the crime.

Ward's bill also could discourage victims from reporting abuse by relatives, fearing they'd get the death penalty.

The Senate Judiciary Committee amended the bill to allow the
death penalty only for rapists previously convicted of a similar attack
on a child. It then sent the bill to the Appropriations Committee,
where it should receive a quiet burial.

The Post has historically opposed the death penalty. But even
supporters of capital punishment have strong reasons to oppose this
bill. First, it endangers the very children it is designed to protect.
If the penalty for rape alone is death, then a criminal vicious enough
to make such a heinous attack in the first place may reason that he
faces no further penalty for killing the victim.

Granted, most rapists would not even think that far down the road, but why provide the incentive for those who might?

Whether or not the death penalty deters crime at all is a
subject of endless debate. But what influence the law does have should
always be aimed at shielding victims from even worse harm. Colorado law
already allows a death penalty for a rapist who kills his victim. By executing for rape alone, Ward's bill strips victims of whatever protection they now receive under that law.

Ward's bill also violates one of the tenets of Judeo-Christian
morality, the rule that punishment may be proportional to a crime but
must not exceed it — an eye for an eye, a tooth for a tooth.

The notion that life can only be taken from those who have
themselves taken life is so deeply embedded that the U.S. Supreme Court
in 1977 ruled that states can only impose the death penalty for murder.

Despite that ruling, five states still have laws on the books
like the one Ward wants to bring to Colorado, allowing execution for
the rape of a child under age 12. But only one, Louisiana, is currently
trying to execute a rapist, Patrick Kennedy, for such an offense. That
case is now pending before the U.S. Supreme Court.

Earlier coverage of the Colorado legislation is here and here. The Jessica's Law index is here. More on Kennedy v. Louisiana is here; the SCOTUSwiki page is here. More on the 1977 case of Coker v. Georgia, via Oyez, is here.

Tuesday, 11 March 2008

Colorado could put child rapists to
death under a bill that won a Senate committee's approval Monday and
would put the state on par with just five others that allow the
execution of such sex offenders.

Prosecutors could try for the death penalty in cases in which
rape victims are 12 or younger, where DNA evidence is present and where
the perpetrator has been previously convicted of a sex offense against
a child.

The harsher sentences might run afoul of the Constitution —
the U.S. Supreme Court will weigh in on the issue this year — and could
discourage victims from reporting abuse by relatives, according to
critics, who include victims' rights advocates.

But some of the most terrible offenders simply deserve death,
said sponsor Sen. Steve Ward, R-Littleton. He referred to a Louisiana
man who raped his 8-year-old stepdaughter and became the first such
offender in the nation to receive a death sentence.

"The crimes we're looking at are particularly heinous," Ward said.

Colorado public defenders, who oppose the bill, originally
estimated that it would make about 260 people a year eligible for the
death penalty. It was unclear what an amendment, which limits the bill
to repeat offenders, would do to that estimate.

In Louisiana, the one state that has sentenced child rapists
to death, prosecutors have made capital cases of only two out of 180
eligible cases.

Constitutional challenges immediately followed the first of
those two sentences, and the U.S. Supreme Court is expected to rule by
June whether death is cruel and unusual punishment for felons who have
not taken a life.

Senate Judiciary Committee members voted 5-2 to send Senate
Bill 195 to the chamber's appropriations committee, which will weigh
its as-yet-unknown price tag.

And:

Colorado sends child rapists and other
serious sex offenders to prison for between four years and life, with
the duration largely left to a judge's discretion.

Of the 1,200 people now incarcerated for the most serious sex
crimes, only eight have received parole in the past decade, said Doug
Wilson, Colorado's chief public defender.

Colorado joins Alabama, Missouri and Mississippi in seeking death for child rapists this year.

Montana, Oklahoma and South Carolina have passed similar laws
since 2006, and Louisiana and Texas both approved such legislation in
the mid-1990s, said Richard Dieter, executive director of the
Washington, D.C.-based Death Penalty Information Center.

The article notes that Colorado currently has one person on its death row, and that the state's last execution was more than 10 years ago. The Jessica's Law index is here.

A Colorado
lawmaker has introduced a bill that would make the death penalty
available for anyone convicted of a violent sexual assault on a child.

Sen.
Steve Ward (R-Littleton) says prosecutors need the tool to punish those
who commit the worst of crimes against children younger than 12.

"It puts it into a new class of crimes and actually an important one," said Ward.

Ward
is proposing capital punishment as an option on the first offense of
violent sexual assault on a child under 12, but he says prosecutors may
not use it and choose instead to apply it to repeat offenders.

"What
Senate Bill 195 does is make this penalty available as a tool to the
prosecutors to do their work," said Ward. "I think the death penalty is
important to have available to prosecutors when you have crimes as
heinous as these crimes can be."

Opponents say that in 1977,
the U.S. Supreme Court ruled that states could not put people to death
for rape cases because it was unconstitutional. They found it fell
under the 8th Amendment as cruel and unusual punishment.

"The
idea behind capital punishment is to execute those that commit the most
heinous and atrocious murders, whether that's stabbing, shooting,
bombs, whatever," said Doug Wilson, a public defender for Colorado.
"It's not specifically set up - it never has been set up - for
execution in cases where people are not killed. (That's) not saying
it's not traumatic to the children, because it is, (and that's) not
saying those folks should necessarily get out of prison if they're
convicted."

And:

The bill will be heard by the Senate Judiciary Committee in April.

Four
states already permit capital punishment for repeat child rapists:
South Carolina, Oklahoma, Montana and Texas. However, no one has been
sentenced to death under those laws. Louisiana has a similar statute
and two people have been sentenced to death there. One is currently
appealing the decision to the Supreme Court and his arguments will be
heard in April.

"There have been briefs filed in the Louisiana
case in front of the Supreme Court by victims' groups and I've read
those and they have a consistent theme," said Wilson.

Wilson
says the briefs argue that once the crimes are discovered, it will keep
the child from telling the police because they don't want a relative to
face execution.

"(The briefs) consistently say this not only
will not help the situation, this will not deter the offenses. It will
actually chill the child's reporting to authorities so we will discover
less of the pedophiles out there."

The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.